Joint Legal Custody and Vaccines

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It has become an all-too-common situation. A divorced parent of two children in St. Louis takes his or her children to the pediatrician or a vaccination clinic in the metropolitan area. The parent intends to have the children receive the Covid-19 vaccination. But when one of the children texts the other parent letting him or her know that she was on her way to get the first shot, the other parent immediately takes action to make sure the children would leave without receiving the vaccine.

Many types of Covid-19 vaccination battles are raging in courts around the country. We see the news reports of children being eligible for the vaccine as Covid-19 cases are starting to rise again this spring. We are also seeing a parent’s position on the Covid-19 vaccine for his or her children being a hot topic in custody battles between divorcing and divorced parents.

According to a New York Times database, approximately 25% of children between ages 5 and 11 in the United States are fully vaccinated. The percentage rises to 59% for children ages 12 to 17. Parents who have not vaccinated their children typically state that they have concerns about the long-term side effects of the vaccine. With Moderna’s recent announcement that they are seeking emergency authorization of their Covid-19 vaccine to be given to babies and toddlers, the decision to vaccinate will need to be made for all children regardless of age.

In every case, whether parents have decided to vaccinate now, later, or never, it is always best for the parents to agree with each other on how to proceed. But when parents do not agree, the post-pandemic battle of whether to vaccinate is part of a new argument being presented in child custody battles. This argument will continue to expand beyond the Covid-19 vaccine and into other areas such as the HPV vaccine for teenagers.

So, what is a parent to do? What if you want to vaccinate your children while your former spouse does not? What do you do when you have joint legal custody of your children and face this problem? Missouri Revised Statute 452.375.1(2) defines joint legal custody. “Joint legal custody” means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority. Parents with joint legal custody must confer and agree on the decision to vaccinate a child.

What if you are a parent who is a doctor or a nurse? What if you have provided care for many critically ill Covid-19 patients as a doctor or nurse over the past 26 months? The same definition applies, and your children will remain unvaccinated until you and the other parent reach an agreement, or you bring this custody issue to the Family Court for a decision.

The battle to argue for or against the Covid-19 vaccine (or any vaccine) may not be inexpensive. Are there ways to limit the expense of the battle and reach an agreement? One option is to schedule a mediation session with the other parent and try to reach an agreement through that process. The mediation process isn’t without flaw as the process is not binding until any agreement reached is entered by the Court as Judgment. Also, one or both parents may use the process to put forth demands unrelated to vaccines which can lead to the process being slow and unfocused.  Another option is to agree to a tiebreaker individual who both parents trust for medical decisions such as the children’s pediatrician. The process is more like an arbitration where each parent can present his or her position but ultimately a decision is made and must be followed. This tiebreaker process isn’t without flaw either, as the pediatrician may simply want to make a recommendation and not decision for the parents. As of the writing of this blog post, the American Academy of Pediatrics does not have an official stance on vaccinating children in situations of custodial disputes.  

If neither mediation or a tiebreaker is an option for you, then you unfortunately exist in limbo until the issue is argued before the Court and the judge assigned to the case decides. Until the judge makes that decision, the parent wanting to vaccinate will feel as if the other parent has all the power to decide whether the children get vaccinated. Why? Because even if the children’s pediatrician is recommending vaccination, the other parent can simply say “no” and the pediatrician will not be able to proceed with the consent of both parents.

But once the Court has completed its hearing on the vaccination issue, the judge assigned to the case can keep the parents as joint legal custodians but grant one parent decision-making power over issues of vaccination. That sort of decision-making authority clarity is necessary so there is no longer any grey area between the parents on the issue of vaccination. However, if you are a parent who is currently navigating the divorce and custody process, then you should be clear with your attorney if you disagree with the vaccination stance of the other parent.  

Also, you should be prepared to argue to the Court as to why you, and not the other parent, should be vested with medical decision-making powers for your child. You should also be sure that your children’s’ pediatrician (or therapist) has the same vaccination view as you. Most judges give a lot of deference to the children’s treating pediatrician because the treating pediatrician is the only one who is dealing with the child as a patient. That recommendation would assist the Court in deciding what is in the best interest of the child. In general, it is a high legal burden to prevent vaccination. If you are going to oppose vaccination, you better have a pretty good reason, like a religious conviction or a medical condition.

Should you need the advice of an experienced divorce and child custody attorney or have questions or concerns about your situation, know that we are here to help and ready to discuss those issues with you.

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