On October 29th, the U.S. Food and Drug Administration (FDA) approved emergency use of the Pfizer-BioNTech Covid-19 Vaccine for children as young as age 5. This comes at a time when many parents continue to ask questions about the vaccine. So, what happens when divorced parents disagree about vaccinating their child?
Joint legal custody means both parents have a voice
If you have sole legal custody of your child, you have the sole right to make important decisions about your child’s education, religious upbringing and health care. However, in Virginia, most divorced parents share joint legal custody. That means each has a say in how they raise their child, and this can complicate matters when you and your ex disagree about vaccination.
Parents with joint legal custody generally need to agree on non-emergency medical treatment. This includes most vaccinations. If you act unilaterally, you could be infringing upon your ex’s rights and may, thereby, place your custody rights at risk.
Accordingly, many parents who have been unable to reach an agreement or compromise have started to take their vaccination arguments to court.
How do the courts review vaccination cases?
If you’re going to head to court over a vaccination, you want to understand the factors at play. As you likely know, the court’s primary concern is for your child’s best interests. As a result, even though Virginia is one of 44 states that grant religious exemptions for required school vacations, the court is likely to review your dispute in the context of all the standard factors it considers for child custody concerns.
Among other things, this means:
- The courts are generally inclined to stick with the scientific recommendations of organizations like the American Academy of Pediatrics, the Centers for Disease Control and FDA. Peer-reviewed medical journals are more likely to carry weight than blogs, and your supporting scientific evidence should all be carefully vetted.
- Your previous involvement in your child’s health care matters. The court is less likely to take your position seriously if this is the first time you’ve taken a direct interest in your child’s medical treatment. It may also look at whether you agreed to previous vaccinations.
- While the vaccine is only approved for emergency use, the court may prove more receptive to arguments that the child’s vaccination does not constitute an emergency. Some experts have argued that courts are more likely to listen to parents who refuse the vaccine now, but who can say they would vaccinate their children after the vaccine receives full FDA approval or after a waiting period of several months or a year.
- It’s possible that two parents’ inability to reach a compromise could serve as grounds for a custody modification, especially for younger children. This was made clear in the 2009 case of Grzyb v. Grzyb. The court found the father’s insistence on vaccinating his child was inconsistent with his previous beliefs. Because his stance led to a health care stalemate, the court worried he might stand in the way of future health care decisions. As a result, it sided with the mother who refused to vaccinate her child. She received sole and full medical and health care decision making for the child.
Vaccination cases have become increasingly common
Vaccinations remain a divisive topic in today’s society, and this goes for divorced couples, as well. The courts have seen a swell of custody arguments centered on children’s vaccinations, and the FDA’s recent approval of the Pfizer vaccine for younger children is likely to fuel even more of these arguments.
If you and your ex cannot agree, it’s important to understand the whole shape of your argument. The science matters, and most experts believe courts will follow the science and favor vaccination. Still, the argument might be larger or simpler than you expect, and you don’t want to get your first sense of the court’s full concerns while you’re standing in front of the judge.