Late last month, NBC Today reported that “More and more co-parents are going to court over COVID-19 vaccines for children.”
Even in some intact marriages, Covid has exposed and exacerbated ideological differences between spouses, but these conflicts can be especially complicated for divorced parents with children.
Covid-19 has raised new issues in custody battles and co-parenting arrangements. Exes may find themselves facing a barrage of choices they could not have imagined pre-pandemic—including differing opinions on vaccination, masking, social restrictions, pandemic education choices, and so forth.
In April 2021, when millions of American adults were already vaccinated against Covid-19, and vaccine approval for adolescents 16+ was right around the corner, we wrote on this blog about the tension some divorced parents were facing over whether to vaccinate their kids.
In the intervening months, especially this past Fall, several factors have expanded and intensified those conflicts:
- In late spring, kids ages 12-16 also became eligible for the vaccine
- Children returned to school—some for the first time in nearly a year and a half
- California became the first state to mandate Covid vaccines for all children attending in-person school (And districts in numerous other states initiated more limited mandates, such as for student-athletes)
- In October the FDA approved the vaccine for an even younger group: 5-11-year-olds
- More recent virus variants—first Delta and now Omicron—have added further uncertainty and turned up the heat on the vaccine decision.
The FDA has approved the Covid vaccine for children 5 and up. The CDC, and trusted medical authorities including the American Academy of Family Physicians, and the American Academy of Pediatrics recommend the approved vaccine (Pfizer) for eligible children, affirming it is safe and effective. Still, some parents feel hesitant to vaccinate their children without longer-term proof of its safety.
Though there may be disagreement, when parents are a married couple, one spouse can legally give consent for their child’s vaccination.
But what should you do as a divorced parent if you’re at a stalemate with your ex over Covid vaccination for your child?
First, it’s important to review and understand your custody agreement.
Divorce settlements establish provisions for both physical custody and legal custody. Physical custody determines which parent the child will live with, as well as visitation rights. Legal custody refers to decision-making power with regard to key aspects of the child’s upbringing, such as religion, education, and medical care.
If one parent has sole legal custody, the vaccine decision is theirs to make.
In California, it’s common to have joint legal custody even if physical custody is not shared. When parents have joint legal custody, neither parent can make a major decision on behalf of their children without the other parent’s consent or court order.
If you and your ex share joint legal custody, and you disagree about Covid vaccination, you will have to resolve the issue by following the dispute resolution process established in your dissolution decree.
Start with a calm discussion. Some co-parents feel that their dispute is not really about vaccination but about control. So try to really hear one another’s concerns. Remember that ultimately you both want what is best for your child and their health.
Talk to your child’s pediatrician together. Perhaps get a second opinion from a trusted, accredited medical professional.
Work with a mediator to try to reach a resolution if you can’t agree on your own.
A very strong disagreement may mean asking the court to resolve the dispute or even modify the legal custody arrangement. The court’s job is always to factor in all aspects of the child’s best interest, including health, safety, and welfare. The judge will consider many factors, including each parent’s reasoning, health concerns specific to the family or child, school and activity requirements, and expert medical opinion, particularly the child’s pediatrician.
If you must go to court, it is very important to seek legal counsel. The experienced team of family law attorneys at SFLG can help you navigate this complex situation.
By Debra Schoenberg