As more children are now eligible to receive the COVID vaccine, more and more parents who share custody of their children are fighting over whether their kid will get vaccinated. “One in every five cases hitting my desk these days includes a disagreement about giving the COVID-19 vaccine to children,” says California family law attorney Brent Kaspar.
It’s the latest in COVID-related disagreements Kaspar has seen parents engage in over the last two years of the COVID-19 pandemic. “There’s been a lot of disagreement between parents about mask-wearing, whether they should alter their behavior by not attending events at large venues, and other COVID safety issues,” he says. “That flows through to segue into vaccines. It seems to follow the political spats that people are having.”
A unique characteristic of the disagreement over COVID vaccination is that there’s little room for negotiation. With masking and other mitigation strategies, there are usually opportunities for situational application and compromise. But with the COVID vaccine, it’s all or nothing. “I encourage parents to be reasonable. But the problem with the vaccines is it’s a zero-sum situation, so parents are more likely to dig in their heels,” Kaspar says.
If your partner won’t let you vaccinate your kids, this is what you need to know about the legal playing field to come to a resolution.
What Does The Custody Agreement Say?
In California, where Kaspar practices, there are two types of custody. Physical custody dictates which parent the child lives with and what visitation rights look like. On the other hand, legal custody gives parents decision-making rights over areas such as education and medical care. “The default for legal custody is usually 50/50 between parents, regardless of physical custody,” Kaspar says. “Parents have a mutual obligation to make decisions in the best interest of the child.”
So although your child may live with you the majority of the time and you take care of most, if not all, of their medical appointments, you can’t make the unilateral decision to get them vaccinated unless you’ve been granted primary legal custody. “The parent with physical custody can make decisions in an emergency, but big issues like vaccines will need to be discussed well in advance.”
Look to CDC Guidelines and Local Vaccine Mandates
“Judges really hate to be involved in co-parenting issues,” Kaspar says. “And I think they really hate to be involved in this type of issue because they’re not doctors. So they’re just looking at the CDC [Centers for Disease Control and Prevention] guidelines and trying to follow the mandates, because those have been deemed in the best interest of everyone.”
That being said, mandates vary from state to state and can sometimes differ even at the local level. For instance, Gov. Gavin Newsom of California recently announced plans to add the COVID-19 vaccine to the list of vaccinations required for middle and high school students to attend school in person, once the vaccine receives full approval from the Food and Drug Administration (FDA). But it’s nearly impossible to imagine a similar mandate passing in Texas, where Gov. Greg Abbot issued an executive order to ban schools from issuing mask mandates.
“In California, it will be in the best interest of the child to follow the mandates so that they can fully participate in school,” Kaspar says. “So, as a parent who wants to vaccinate your child, you have a lot going for you because the judge will most likely side with the parent that’s following mandates.”
On the other hand, parents who fight against vaccination in places that require them may open the door for challenges to their custody status. “If the judge feels that you’re not a fit parent because you’re going against an order and the common knowledge, you can be deemed unfit. And being around an unfit parent is not in the best interest of the child. So, that’s where people need to proceed cautiously here.”
But the fight in jurisdictions that don’t and won’t have vaccine requirements or mandates will be much more of an uphill battle. In this scenario, hiring a lawyer to file and order and argue the case before a judge is going to be an expensive procedure that is largely speculative.
Kaspar understands that custody battles are complex, but he advises parents to do everything they can to find solutions without taking disputes to court. “I always try to remind parents that they’re co-parenting. So even if you’re going through the divorce process, and it’s contentious, my advice to people is that since they’re going to be co-parenting until the child is 18, the best course of action here is to try to work together.”
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