August 9th, 2021
COVID and Co-Parenting: What If We Disagree?
Posted in: Family Law Tagged: Monica Garcia Harms
Author: Monica Garcia Harms
As a return to school is on the horizon and the possibility of expanding the age range for children eligible for a COVID-19 vaccination looming, parents trying to navigate shared custody decisions will face some additional challenges this fall.
With MCPS’s decision that beginning August 30th all schools with return to full-capacity in-person learning five days a week, parents concerned with the school district’s plan are facing decisions including enrolling their children in a virtual academy, homeschooling, or seeking out private education opportunities. Co-parents may not always agree on which course of action is best for their child.
Additionally, with vaccinations available to children 12 and up and the FDA predicting vaccination approval for younger children conceivably as soon as October, the deeply personal, complicated and fraught issue of whether or not to vaccinate your child will likely complicate the co-parenting back-to-school season even further.
A recent survey by Kaiser Health stated that 29% of parents plan to get their child vaccinated as soon as it’s available for their age group, 32% plan to take a wait and see approach, 19% do not plan to get their child vaccinated and 15% will only do so if it’s required by schools.
Educational, medical and religious decisions all fall under the umbrella of legal custody. Therefore, in determining your options, it’s important to keep in mind what type of legal custody you have. Absent a Court Order, parenting plan or written agreement in place, you and your co-parent have equal rights under the law. Parents having been through a divorce or custody case will have an order or agreement in place dictating the legal custody arrangement.
If you disagree with your co-parent’s decisions on back-to-school or vaccination, you can take the following steps to help resolve the issue.
- Explore resources and speak with an expert together. Talk to your child’s pediatrician about the risks vs. the benefits of the vaccinations or speak with school administrators about what school will look like for your student this fall. Read the available CDC recommendations.
- Try to settle on an agreement or compromise. Communicate your concerns and discuss possible alternatives and accommodations.
- Consult with an attorney. In matters where the parties have joint legal custody, it’s important that neither parent act unilaterally. If you can’t reach an agreement, speak with a family law attorney to determine what your legal rights are and what actions can be taken.
If the matter goes before a judge, in determining the question of which parent gets to decide whether to vaccinate a child or not, courts will look at best interest factors including:
- Are the vaccines necessary or elective?
- Do schools require the vaccine?
- The basis for the parent’s concern (i.e. personal, religious, medical)
- Parental involvement
Because this is a novel issue there is not a large body of case law from any state yet, but it is expected that the issue of vaccination for children will be examined by a number of courts this year and next.
In a Maryland Court of Special Appeals ruling on K. Y-B, 242 Md. App. 473 in 2019, the court held that a parent is free to believe as they wish, but they cannot act on their beliefs in a way that poses a serious danger to a child’s life or health. The Court further held that “the juvenile court did not abuse its discretion in concluding that the State’s compelling interest in protecting the health of the Child outweighs Mother’s belief that vaccination contravenes her faith.”