What you need to know about vaccinating your child if you and your co-parent disagree

On June 17, 2022, the Food and Drug Administration granted emergency use authorization to both Pfizer and Moderna’s COVID vaccines for children between the ages of six months and five years old (six years old for Moderna). For many families, this long-awaited approval is great news! But what if you’re ready to vaccinate your child(ren) against COVID-19 and your co-parent disagrees, or vice versa? Well, the answer largely depends on the custody arrangement you and your child(ren)’s other parent have and what forum you are in.  

Sole Legal Custody

Of course, if you have sole legal custody of your child(ren), and a custody order or a Marital Settlement Agreement (MSA) states that you can make decisions solely, the decision is yours as, legally, you can make major decisions affecting the health and welfare of your child(ren).  You do not need the other parent’s agreement as to whether to vaccinate your child(ren). If, however, you are relying upon an MSA, it’s a good idea to double-check that it does not undercut itself and state both that you have sole legal custody and that you and the other parent must confer before making major decisions for the child. If your Agreement says the latter, read on. If you are required to consult with your co-parent but are afraid that he/she may undercut your actions if you let them know you plan to vaccinate your child(ren), talk to a family lawyer first.  

Joint Legal Custody

If there is no custody order or Marital Settlement Agreement, the default will most frequently be joint legal custody. If you share joint legal custody with your co-parent, you both must agree before a major decision is made for the child(ren). This means the two of you must agree in order for your child(ren) to receive the vaccine. If the two of you cannot come to an agreement, the parent who wants to vaccinate the child(ren) will have to seek permission from the court in order to do so. This is where the forum and judge may matter. Whether your child gets vaccinated may depend on where you must go to court and which judge you draw, i.e., whether their views align with vaccination or not. In these circumstances, you may be able to help the judge by presenting them with the view of your child(ren)’s pediatrician, especially in the event of an emergency filing. Your pediatrician’s recommendation and the judge’s ruling will depend on your child’s individual needs. 

Joint Legal Custody with Tiebreaker Authority

If you and your co-parent share joint legal custody, but one parent has tie-breaking authority, the two of you must first make every effort to reach an agreement about vaccinating your child. If, after you have exhausted all attempts at coming to an agreement, you cannot settle on whether or not you should get your child(ren) vaccinated, the parent with tie-breaking authority has the right to make the ultimate decision. If the parent without tie-breaking authority very strongly disagrees with the other parent’s decision, they can seek emergency relief from the court in order to prevent or require vaccination. As above, this is where the forum and judge really matter. 

Whether or not to vaccinate your child against COVID-19 is a very personal decision, and often depends on many things, including your own personal beliefs and any pre-existing health conditions your child(ren) may have, the composition of your household, and a host of other factors. In general, it is up to each child’s own parents to decide whether to vaccinate. 

However, the courts may be forced to intervene when two parents cannot come to a joint decision. If schools, daycares, before- and after-care programs, enrichment activities, and other places begin to require proof of vaccination, this may well factor into the court’s decision. If keeping a child away from a vaccine is tantamount to home schooling, the judge’s view on home schooling may also play a role in their ruling. Courts may also consider a child’s health, vaccine history, and pediatrician’s recommendation, as well as whether one or both parents’ decisions may be politically motivated. Anecdotally, across the country, many courts seem to be siding with the parent who wants to vaccinate their child(ren), and in some cases, family courts have mandated that parents receive the vaccine or submit to regular COVID testing or lose their parenting time. Ultimately, every judge and every court is different, so there is no guarantee that the courts will rule a particular way, should it come to legal proceedings. 

This conversation is especially relevant given the recent authorization of the COVID-19 vaccine for young children, but it applies to virtually all recommended vaccines. Your child’s pediatrician is best equipped to answer any questions a parent may have about vaccines themselves, and whether to vaccinate the child(ren). If you have questions about your legal rights, your custody arrangements, and any options you may have, or you and your co-parent disagree, contact a qualified family law attorney for more information.