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November 11th, 2021

Vaccines and Co-Parenting: What If We Disagree?

Posted in: Family Law  Featured    Tagged: Monica Garcia Harms, Sondra M. Douglas

Author: Monica Garcia Harms, Sondra M. Douglas

With the COVID-19 vaccine now available to children ages five and older, parents need to decide whether they want their children vaccinated. What do you do when one parent wants to vaccinate a child and the other does not? The decision to vaccinate a child can spark controversy among divorced and separated parents, particularly those with a history of conflict, thereby complicating the co-parenting relationship.

A recent survey by Kaiser Health stated that 29% of parents plan to get their child vaccinated as soon as it is 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 is required by schools.

Educational, medical and religious decisions all fall under the umbrella of legal custody. Therefore, in determining your options, it is important to keep in mind what type of legal custody arrangement governs. Absent a Court Order, parenting plan or written agreement, 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. That arrangement will be spelled out as joint legal custody (requiring the consent of both parents), sole legal custody (requiring the consent only of the parent awarded sole legal custody), or joint legal custody with tie-breaking authority (requiring both parent to discuss and confer with one another to attempt to reach a shared decision, but allowing one parent to break the tie in an unresolvable dispute).

If you have joint legal custody and disagree with your co-parent’s decision on whether to vaccinate your child, you can take the following steps to help resolve the issue.

• Speak with an expert together. Talk to your child’s pediatrician about the risks vs. the benefits of the vaccination. Obtain the pediatrician’s recommendation based on the child’s medical condition.
• 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 is 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 of which parent gets to decide whether to vaccinate a child or not must be resolved by a judge, courts may look at factors relating to a child’s best interest including:

• Is the vaccine necessary for the child to fully participate in extra-curricular activities affecting their social and emotional well-being?
• Does the child’s school require the vaccine?
• The basis for the parent’s concern (i.e. personal, religious, medical).
• Parental involvement in prior legal custody decisions affecting the child.
• The child’s health history.

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.”

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.

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