To Vaccinate or Not to Vaccinate? (Is That a Legal Question?)

At the start of COVID-19, we saw a plethora of new types of issues rise to the surface of family law issues. For one, there are no federal mandates regarding child vaccination, and it varies by each state.

Some vaccinations, like polio, tetanus, etc., are required to attend public schools, daycares and even many private schools, but there are several questions left unanswered regarding COVID-19 vaccinations and the future of the law surrounding this topic.

Although children under 16 are not yet eligible for any of the currently available COVID-19 vaccinations, it is clear that they will be in the near future. Vaccinations are already a sore subject for many American parents and within school systems, but when parents are separated or divorced, these issues can become even more chaotic and complex.

The Centers for Disease Control and Prevention (CDC) urges parents to immunize their children for their own and others safety. However, many parents still suspect that vaccines are not fully developed or tested sufficiently to feel confident enough to have their children receive such treatments.

The crucial question remaining is whether or not the COVID-19 vaccine will be optional for a child attending school or daycare. However, it seems highly unlikely that in the wake of the pandemic that occurred in 2020, that the COVID-19 vaccine would be considered an optional choice.

This can get even more complicated when one parent strongly opposes the vaccine while the other feels immunization is crucial.

Specifically, what if in a divorce, a parent objects to a mandatory vaccine and therefore causes that child to be forced into homeschooling to avoid the requirement? What if one parent has religious reasons not to vaccinate but the other does not?

If parents share legal custody, and they cannot reach an agreement, then parents will likely find themselves back in the courtroom. In these situations, to avoid litigation, divorced parents should come up with a parent plan moving forward that addresses the decision around vaccination among other decisions about their child.

Vaccinations, where a child will attend school, medical treatments, etc. are all subject to the terms of how the parents share legal custody. Parents who share joint legal custody must agree on these decisions. If they find themselves in court over this issue, there are several factors a court will generally consider when making a decision on what the children should do:

1. A court will consider testimony from the child’s medical providers on the child’s medical history and possible conditions, as well expert testimony from doctors or scientists supporting or opposing the vaccine.

2. A court will consider what the consequences of not getting the vaccine would be on the child’s education. For example, whether it will disrupt their current curriculum if they have to be pulled out and homeschooled and whether the homeschooling program is in the child’s best interest. Another nuanced issue is also the possible lack of socialization that would result from being homeschooled instead. If private schools allow optional vaccinations, then the issue of tuition costs might also be a factor.

3. A court will consider the relationship of the parents with the child and which parent has historically and consistently made decisions for the child’s health and education. The court might give more weight to the evidence presented by the more involved parent.

4. The court may also consider whether parents previously opposed vaccinations and the reasons for doing so in addition to the mandatory or voluntary nature of the vaccine in question.

The COVID-19 pandemic has truly created unchartered ground for many family law offices and parents dealing with the immunization issues surround the COVID-19 vaccine, along with in-person learning while unvaccinated. Thus, it is strongly recommended that both parents sit down and create a strong strategy to navigating these new landscapes. As experienced family law attorneys at Argyris Mah, LLP, we are experienced and equipped to handle custody matters, even if new territory for the courts. Call us to set up a consultation at 408-214-6366 or email us at info@argyrismah.com.