That is certainly the question on many divorced parents’ minds now that the Omicron wave is washing over North America.
As things currently stand, the CDC recommends the use of COVID-19 vaccines for everyone ages five and older. However, many American adults maintain polarized opinions about the safety, efficacy, and necessity of the COVID-19 vaccines, which were only recently approved by the United States Government within the scope of the Emergency Use Authorization. While the COVID-19 vaccines have been touted as the most effective method of preventing health complications from the COVID-19 virus and its resulting variants, the opposing views of parents who share legal custody of the same minor children have led to custody disputes between these parents as to whether their children should get vaccinated. Parents are now being faced with a critical health decision for their children: to vaccinate or not to vaccinate.
If one parent maintains sole legal custody of the children, then that parent has permission to unilaterally decide whether the children will receive any given vaccination. However, in Pennsylvania, most parents share joint legal custody of their children. In joint legal custody cases, both parents must consult with each other on, and agree to any legal custody decisions for their children such as it relates to medical, educational, or religious concerns. This includes vaccinations, and more importantly (in these contemporary times) – the COVID-19 vaccine.
To Vaccinate or Not to Vaccinate? When Divorced Parents Disagree
In general, it would be ideal if both parents understood why they disagree about the COVID-19 vaccine and then tried to find a way to compromise. Perhaps one parent is not comfortable with their child receiving the COVID-19 vaccine because it is so new or because a child is still young. Perhaps they can agree that the child will not receive the vaccine immediately upon its release, but the children will get the vaccine after it has proven to be safe and effective after a certain amount of time on the market. While both parents can freely maintain their own views on the subject, it would be wise for each parent to seek the advice of their children’s doctors in order to fully understand the upside (or downside) of the vaccine. This will help parents remain informed about what makes the most sense for their children.
The legal standard for all custody decisions is the best interests of the children. In Pennsylvania, where I practice, this standard is set forth in the statute (23 Pa.C.S.A. §5328). “Best interests” is based on a plethora of factors, all of which hearing officers and judges will consider when co-parents ask the court to resolve their dispute. When co-parents who share legal custody of their children disagree as to whether their children should receive the COVID-19 vaccine, it is within either parent’s right to file a Petition for Special Relief with the courts. The court would then have the discretion to decide whether one parent will prevail on this vaccination decision despite the objection or favor of the other parent.
Asking the Court to Rule on This Hot-Button Issue
Generally, however, it would be rare for a judge to rule on whether the children should receive the vaccination without any guidance from the medical professionals who know best. If the children’s pediatrician (or other medical specialist) feels strongly one way or the other, the judge would likely follow the recommendations of the children’s doctor after hearing testimony from them or reading a letter confirming the doctor’s stance on the issue in this particular case.
The Honorable Mark L. Tunnell of The Court of Common Pleas of Chester County, Pennsylvania Orphans’ Court Division wrote and filed an Order and decision regarding this exact type of vaccination dispute in October 2021. In the Matter of A.C.G., an Incapacitated Person, No. 1517-0336, (Court of Common Pleas of Chester County, Pennsylvania Orphans’ Court Division, October 5, 2021). In this case, the Judge provided tremendous deference to the recommendations of the medical professionals who understood the medical history of the incapacitated individual at the center of this dispute. The question at issue was whether an incapacitated individual living in a group home should be vaccinated over the objection of one of the co-guardians (Mother). The crux of the dispute was that both guardians maintained contradictory ideas on how to keep their incapacitated adult daughter safe from the pandemic, especially since she resided in a group setting at the time. After a three-day hearing and testimony from both guardians as well as the incapacitated individual’s primary care physician, cardiologist, and neurologist, Judge Tunnell ordered the incapacitated individual to get vaccinated.
Moving forward, it appears that most judges will be inclined to find the evidence provided by medical professionals and scientists is compelling enough to have confirmed that the vaccine is safe, effective, and necessary.
Although this case did not involve a minor child, there are comparisons to legal custody disputes regarding child vaccination because it included two guardians with opposing viewpoints about whether their incapacitated adult daughter should be vaccinated. In his opinion, Judge Tunnell maintained a firm stance on this issue, siding with science and medicine instead of emotion and fear. Moving forward, it appears that most judges will be inclined to find the evidence provided by medical professionals (including Immunologists and Virologists) and scientists/researchers is compelling enough to have confirmed that the vaccine is safe, effective, and necessary.
With that in mind, family lawyers should remain aware of the positions that the local courts in their jurisdiction have taken on these vaccination issues and then advise their clients accordingly. Court intervention may or may not be the best route for some clients, depending on their opinions relating to child vaccination.
When Co-Parents Take Opposing Positions about Vaccinating their Children
When separated or divorced parents disagree about the need to vaccinate their children against COVID-19, compromise might be the most beneficial option for the child’s health and safety and the family’s overall well-being. While compromise can often be quite elusive in custody matters, parents who find common ground on a disputed issue can maintain autonomy in a way that benefits their co-parenting relationship.
Given that the COVID-19 pandemic is a public health crisis – which does not seem to be disappearing anytime soon – parents may want to consider following the vaccination trends in order to keep their children, their families, and the community safe from a rapidly transmissible virus. Although the decision of whether or not to vaccinate children may not always be so cut-and-dried, it is a decision that requires attention and compromise from both parents. Should parents remain unable to agree on the issue of vaccination, it appears that most courts are inclined to follow the recommendations from the scientific and medical communities – at least for now.
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