The COVID-19 Vaccine and Child Custody Conflict

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Thankfully, the initial rollout of vaccines for the COVID-19 coronavirus has begun, and we can anticipate that first responders and at-risk populations will have the vaccine in the next month or two, followed by a tiered release to the rest of the country.  Currently, children will be the last to receive the vaccine because they seem least susceptible to fatalities or chronic injury from the virus.  Additionally, pharmaceutical companies have only begun to test their vaccines on children now.

While the arrival of a vaccine should be great news, many Americans remain skeptical of the vaccine and worry it may not be safe, effective, or both.  Many of these same people may not want to have their children vaccinated for the same worries.

It is highly likely that all schools will require a COVID-19 vaccination for students starting in the fall 2021 school year.  Under Missouri law, parents cannot waive the vaccination requirement for mandatory vaccinations except for (a) religious beliefs or (b) medical contraindications, which requires documentation from a licensed physician.  Simply believing in alternative medicine or having certain views against vaccinations not grounded in religious belief will not suffice under the law.

What happens if parents do not agree about vaccinating their child against COVID-19?

In Missouri, medical care falls under the category of legal custody.  If parents share joint legal custody, they must both agree in order for a child to receive a vaccine.  If the court granted one parent sole custody over medical decisions or more generally sole legal custody, that parent alone gets to make the decision.

Let’s examine what could happen under various scenarios.

If two parents with joint legal custody disagree about the vaccine, the parents will have to follow the dispute resolution provision of their dissolution decree.  They might have to mediate the conflict.  In doing so, the parents will have a stronger case if the medical evidence weighs in their favor.  If, for example, the evidence shows that the FDA found almost no risk to the child of side effects and high efficacy in the vaccine, it would be hard to convince the mediator that failing to administer the vaccine to the child would be in the best interests of the child, particularly if it would require that child’s removal from school.  On the other hand, if the medical evidence showed less efficacy or more risk, the parent with concerns might have a stronger case.  If, after mediation, the parents still disagree, one parent can ask the court to resolve the matter, but that parent should be aware that the court will follow the medical evidence and also the legal requirement that favors if not mandates vaccination.

If one parent has sole decision-making authority over the vaccination, but that parent chooses not to vaccinate, does the other parent have an option?  Yes.  That parent can file a motion in court to modify the custody provisions to allow that parent medical decision making, citing the belief that the sole custody parent is not acting in the best interest of the child.  However, to make this case, the evidence must point firmly in the direction of no side effects and high efficacy.  Typically, if the State of Missouri requires the vaccine, the court will presume those two assumptions have been met.

Parents who have serious concerns about vaccinations should begin planning to deal with the likelihood the vaccine will be required and consult an attorney soon so that the matter can be disposed of before the beginning of the fall school year.

If you have questions about the COVID-19 vaccine and child custody, contact us – we can help.

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