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What Happens When Divorced Parents Disagree on the COVID-19 Vaccine

For parents sharing legal custody of their children, whether to vaccinate their children against COVID-19 has become an increasingly common dispute.

Recently, COVID-19 vaccines have been made available for children ages 6 months and older, and boosters have been made available for children 5 years of age and older. Attitudes and decisions concerning the COVID-19 vaccine for children have been deeply divided among parents—even with the guidance provided by medical professionals on this topic.

Research by the Kaiser Family Foundation (KFF) demonstrates the division: As of July 2022, most parents whose young children (ages 5 months to 4 years) had not received at least one dose of the COVID-19 vaccine would “definitely not” get them vaccinated, and a minority of parents either already got their children vaccinated or would “get them vaccinated right away.” .)

Like with other vaccines, the decision of whether to vaccinate your children against COVID-19 may depend on several different factors including religious beliefs, personal reasons, health and safety concerns, medical research available, school and daycare requirements, or a combination.

Another important factor that the decision to vaccinate your children depends on is the legal custody arrangement for your children. As a result, the decision of whether to vaccinate your children against COVID-19 has soared to the top of legal custody disputes that divorced or separated parents must navigate.

Muslim female doctor in hospital giving an injection to a little boy

Types of Child Custody Agreements in California and Implications on the COVID-19 Vaccination

In California, child custody is broken down into two areas: legal custody and physical custody.

  • Legal custody refers to the right and responsibility to make decisions regarding the children’s health, education, and welfare—including decisions regarding COVID-19 vaccinations.
  • Physical custody refers to how the children’s time is shared between the parents.

Because legal custody agreements govern how to handle the dispute over whether to vaccinate your children against COVID-19, legal custody is focused on in this post.

Legal custody arrangements can be either “sole” or “joint.” Sole legal custody does not require consent and refers to one parent having the exclusive decision-making right and responsibility regarding the children’s health, education, and welfare.

In contrast, joint legal custody means both parents share the decision-making right and responsibility regarding the children’s health, education, and welfare. When faced with a medical decision, parents sharing legal custody must consult with each other and reach an agreement before making any decisions regarding medications, surgeries, (e.g., wisdom teeth removal), vaccinations, and other procedures. There are certain exceptions in emergency situations where consent is not required; vaccinations generally do not fall within this exception. 

For parents sharing legal custody of their children, the decision to vaccinate against COVID-19 must be made jointly.

We Can’t Come to an Agreement. Now What? 

If parents sharing legal custody of their children are unable to reach an agreement on whether to vaccinate their children against COVID-19, they can file a motion with the court requesting either the court make the decision for the parents or the court modify the current legal custody order to give one parent sole decision-making authority.

In resolving the dispute between the parents, the court will look at what is in the best interest of the children. Ultimately, this may mean the court defers to the children’s pediatrician or gives one parent the decision-making authority related to medical decisions.

In determining what is in the best interest of the children, the court may consider several different factors. As it relates to vaccinations, these factors may include whether there are any specific health risks, whether there is a likelihood of serious harm to the children, the parents’ religious beliefs, school or daycare requirements, the reasons each parent either supports the vaccination or objects to it, whether the children’s medical provider has provided an opinion, and the children’s preference (if above age 14 years).

Filing a motion with the court can be a lengthy process and can yield results that may not have been desired. Before filing a motion, it is important to refer to your specific court order or written agreement governing legal custody and medical decision-making in your specific case as there may be details governing what happens when parents reach an impasse on a medical decision—including the decision of whether to vaccinate your children.

Your custody agreement may also require both parents participate in mediation before a motion is filed with the court. The experienced family law attorneys at Cage & Miles, LLP can assist you with reviewing your legal custody court order or written agreement to determine the next steps.

women-signing-documents

Know Your Parental Rights Under Your Legal Custody Agreement

The recent availability of COVID-19 vaccinations for young children has introduced a new point of contention for many divorced or separated parents. More frequently, parents are unable to agree on whether to vaccinate their children against COVID-19.

If the legal custody agreement provides for one parent having sole legal custody or final decision-making authority over medical decisions, no consent is needed before vaccinating the children. However, if the parents share legal custody, they must first discuss with each other and consent to vaccinating their children.

If you and your co-parent do not agree on whether to vaccinate your children against COVID-19, contact Cage & Miles, LLP, and work with one of our experienced family law attorneys to resolve your legal custody dispute.

 

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