As more children are now eligible to receive the COVID vaccine, more and more parents sharing custody of their children are fighting over whether their child will be vaccinated. “One in five cases that hit my desk these days includes a disagreement over giving the COVID-19 vaccine to children,” said the California family law attorney. Brent Kaspar.
This is the latest in COVID-related disagreements that Kaspar has seen parents get involved with over the past two years. “There was a lot of disagreement between parents about wear masks, whether they should change their behavior by not attending events at large venues, and other COVID safety issues, ”he says. “It flows through to vaccines. It seems to be following the political struggle that people are having. ”
A unique feature of the disagreement over COVID vaccination is that there is 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 that it is a zero-sum situation, so parents are more likely to dig into their heels, ”says Kaspar.
If your partner does not allow you to vaccinate your children, this is what you need to know about the legal playing field to come to a solution.
What does the conservation agreement say?
In California, where Kaspar practices, there are two types conservation. Physical supervision determines which parent the child lives with and what visitation rights look like. On the other hand, legal supervision gives parents decision-making rights in areas such as education and medical care. “The default for legal supervision is usually 50/50 between parents, regardless of physical supervision,” says Kaspar. “Parents have a mutual obligation to make decisions in the best interests of the child.”
So even though your child may be living with you most of the time and you take care of most, if not all, of their medical appointments, you can not make the unilateral decision to have them vaccinated unless primary legal supervision is given to you. is allowed. . “The parent with physical supervision can make decisions in an emergency, but major issues such as vaccines will have to be discussed well in advance. ”
View CDC guidelines and local vaccine mandates
“Judges really hate being involved co-parenting issues, ”Says Kaspar. “And I think they really hate being involved in these types of issues, because they are not doctors. So they just look at the CDC [Centers for Disease Control and Prevention] guidelines and try to follow the mandates, because it was considered in the best interests of all. ”
That said, mandates vary from state to state and can sometimes even differ at the local level. Gov. For example, Gavin Newsom of California recently announced plans to add the COVID-19 vaccine to the list of vaccinations needed 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 almost impossible to imagine a similar mandate passing in Texas, where Governor Greg Abbot issued an executive order banning 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 participate fully in school,” says Kaspar. “So, as a parent who wants to vaccinate your child, you have a lot to do for yourself, because the judge will most likely choose his side with the parent following mandate.”
On the other hand, parents who fight against vaccination in places that require it can open the door to challenges to their custody status. “If the judge feels that you are not a suitable parent because you are going against an order and the general knowledge, you can be considered unfit. And being close to an unfit parent is not in the best interests of the child. So, this is where people have to proceed cautiously here. ”
But the battle in jurisdictions that do not have and will not have vaccine requirements or mandates will be much more of an uphill battle. In this scenario, it is going to be an expensive procedure that is largely speculative to hire a lawyer to file the case before a judge and order and argue.
Kaspar understands that custody battles are complex, but he advises parents to do everything in their power to find solutions without taking disputes to court. “I always try to remind parents that they are co-parenting. So even if you go through the divorce process, and it is controversial, my advice to people is that since they will be co-parenting until the child is 18, the best way of action here is to try to work together. ”