When You and Your Ex Don’t Agree on Vaccinating Your Child

The COVID-19 pandemic has brought forward a new litany of contested issues in custody cases.  Access schedules with both parents working from home, distance learning accommodations, and vacationing to COVID-19 hotspots are but a few of them.

With the CDC’s approval of vaccination for children ages 5-12 comes a new issue.  Many parents who share joint legal custody (decision-making authority) are at an impasse as to whether to vaccinate their children.

Parents who are awarded sole legal custody have unilateral authority to make these types of decisions, regardless of whether the other parent agrees.  At most, the parent with sole legal custody must consult the other parent and take his/her opinion into consideration.

Where parents share “joint legal custody” and cannot agree on a major issue impacting a child, such as whether they should be vaccinated, neither parent can make the decision unilaterally. This results in an impasse.

For parents at such an impasse, the first approach we typically recommend is to attempt alternative dispute resolution.  This may involve caucusing with a certified Parent Coordinator or the child’s treating physician.  When alternative dispute resolution fails to resolve the impasse, the parties can turn to the courthouse to resolve the issue through litigation.

A family court judge would evaluate both parents’ positions, hear testimony from witnesses called by both parents, and likely determine whether the joint legal custody arrangement is still viable.

The court may change the custody arrangement and award one parent sole legal custody if the judge finds the circumstances warrant such a change.  The parent who gains sole legal custody would thereafter have unilateral decision-making authority over the vaccination question, as well as future issues. Alternatively, the court may enter a more narrow order, awarding one parent sole legal custody for medical decision-making.

In determining custody, the court typically is more inclined to award sole custody to the parent following the advice of medical professionals with a long-standing history of treating the child. Medical expert testimony is typically given great weight. However, testimony is not heard in a vacuum. For example, the court may look at the parenting history to determine if the parents have agreed to decline past vaccinations for their child for religious or other reasons.  The court may also consider whether the child has any preexisting health conditions that make him/her particularly at risk to either COVID-19 or susceptible to negative side effects of vaccination.

The practical problem is that the Court will not likely hear this custody case for several months after it is filed, absent emergency circumstances to justify an earlier review. Therefore, an impasse over vaccination may not be resolved until long after the exigency expires.

It is critically important that, once even the prospect of an impasse involving your child is on the horizon, you seek the advice of counsel as soon as possible. The family law attorneys at Bulman, Dunie, Burke & Feld, Chtd. are trained and experienced in handling high conflict custody disputes in mediation and also presenting these cases at trial when necessary. Please contact us at (301) 656-1177.