Vaccination Disputes & Custody
COVID changed the world in many ways. One of those changes is that a large number of Americans have become skeptical of governmental/scientific decrees, mandates and recommendations. I am not writing this article to take a position on the merits of these arguments. I am writing to acknowledge that, more and more, I am seeing disagreements arise between parents on these issues, and I believe it would benefit you to have some idea of the ways that these disagreements will likely be resolved.
Vaccines are a medical intervention and the decision of whether to obtain vaccinations fits squarely within the meaning of a major decision concerning the welfare of the children. Therefore, if parents share joint legal custody then they have joint decision-making authority over these major decisions. If neither parent has been given “final decision-making authority” over major decisions when the parents cannot reach agreement, then technically neither parent has the authority to obtain vaccinations for the children without the consent of the other.
(This does not mean that a doctor’s office will not administer vaccines to the children. They may not have a reason to question the authority of a parent who presents to their office with the children asking for what, in their eyes, may be a routine vaccination appointment. If they have been provided a copy of a child custody order that gives both parents joint legal custody, and they receive communication from either parent that they object to a particular treatment, then they probably would decline to do so.)
If either parent has “final decision-making authority” then they have the authority to authorize the treatment over the objection of the other parent, after they have discussed the matter and tried in good faith to reach agreement first. If either parent has sole legal custody, then they have the unilateral right to decide such matters and authorize treatment. Finally, even if neither parent has the final decision-making authority, a parent objecting to vaccination may find it difficult to hold the other parent in contempt for unilaterally vaccinating the children, especially if we are talking about the “standard” vaccines.
“Standard” Vaccines required for North Carolina Schools (Diphtheria, Tetanus, Pertussis, Polio, Measles, Mumps, Rubella, Influenza B, Hepatitis B, Varicella, Pneumococcal conjugate, Tetanus (7th grade), Meningitis (7th grade).
Is it possible for children to attend school without the above vaccinations? – Yes, with a medical exemption or a religious exemption. A medical exemption can only be requested by a physician. A religious exemption is likely going to take both parents’ agreement to submit a letter stating their bona fide religious objection and seeking an exemption. So, since you are likely reading this article because you and the other parent do NOT agree, let’s talk about the bottom line here. As with most other issues in family law, at the end of the day the Judge can and/or will decide what is best for the children if the parents cannot agree. Judges are Doctors of Law, not medical doctors. There are no classes on medicine in law school. They have to defer to the professional expertise of those who are Doctors of Medicine. A Judge cannot blaze a trail to rebalance the scientific risk/benefit analysis of vaccines that are widely administered by pediatricians as safe, effective and, importantly, required to start Kindergarten. All the research and arguments in the world that you could provide is not going to overcome a simple recommendation from the children’s pediatrician that they receive a “standard” slate of vaccinations. Without a reputable and treating pediatrician recommending otherwise (one who was not hired simply to give an opinion on vaccination), I could not see winning an argument against these vaccinations in Court with even a Judge who is sympathetic to such concerns. Further, if you happen to have Judge who believes these concerns to be straight up conspiracy theories, then making this argument in Court could risk convincing such a Judge that the other party should be given final decision-making authority over all major decisions, sole legal custody or even primary physical custody. The bottom line here is that if you object to one or more of these particular vaccines then you will have to win this argument with the other parent, because you are not going to win it in Court.
The COVID Vaccine
During the height of the pandemic, I would have told you to see the analysis on “Standard” Vaccinations. Particularly the phrase: “(Judges) have to defer to the professional expertise of those who are Doctors of Medicine.” It was quite easy to get a doctor to recommend the COVID vaccine for children. I can assure you that the argument against the COVID vaccine has previously lost in Harnett County Family Court over the recommendation of a pediatrician
Today, I’m not so sure that type of case would have the same result. As I stated earlier, at the end of the day the Judge is likely to defer to the medical experts. However, I do not know if the medical experts have recalibrated their risk/benefit analysis of the COVID vaccine for children of various ages, and the boosters that may follow, especially for children that have already had COVID-19. This does seem like a closer case today than it was when the Country was most fearful of this disease. Whether your Judge would treat the COVID vaccine like the “standard” vaccines, or more like the “optional” vaccines, may be an open question.
Optional Vaccines/medical interventions (HPV Vaccine, Hepatitis A, Flu Shot, Lasik eye surgery, etc.)
The HPV Vaccine and the yearly Flu Shot, like the COVID vaccine, are elective vaccines. These and all other elective and/or major, non-emergency medical interventions should require the consent of both parents with joint legal custody, where neither has final decision-making authority. Except in the case of a medical emergency necessitating such action, if either parent unilaterally makes such decisions without the right to do so, they can be held in Criminal Contempt of Court. This carries the potential punishment of imprisonment in the local jail for 30 days. The Court’s willingness to hold a party in Criminal Contempt on these issues will likely be based on the gravity of the transgression, the clarity with which one party objected, how long in advance they did so, and, frankly, how reasonable the Judge believes the party’s objections to have been.
If you have major decision-making issues in your case, whether they are medical or otherwise, be prepared to discuss these concepts and how they apply to the particular issues in your case during your initial consultation.