Legal Matters: What You Need to Know About the COVID-19 Vaccine, Your Kids, and Legal Custody

Co-parenting over the vaccine
Image via Shutterstock.

by Elizabeth Billies

While vaccinating children for COVID-19 is already a hot-button topic, it can be an especially thorny issue for divorced parents. Are you and your co-parent on the same page with regards to the vaccine?

If the answer is no, read on for what you need to know about the COVID-19 vaccine, your kids, and what you need to do before your kids get the jab.

This article will cover the following:

  • Whether you need to discuss giving your children the COVID-19 vaccine with your co-parent first;
  • How to communicate with your co-parent about having your children vaccinated for COVID-19;
  • What to do if you and your co-parent disagree about your children receiving this vaccination; and
  • What a judge will likely do if you bring this issue to court.

With the vaccine now approved for younger children, the CDC recommends the pediatric COVID-19 Vaccine for ages 5 – 11. So, read on and be prepared to tackle this conversation with your co-parent.

Do you need to discuss giving your children the COVID-19 vaccine with your co-parent first?

The short answer is 100% yes, you must discuss giving your children the COVID-19 vaccine with your co-parent before they get the shot. Why? You and your co-parent likely share legal custody. What is legal custody? This means that both of you have the right to make decisions regarding the health, safety, and welfare of your children. The COVID-19 vaccine would definitely fall into the health category. This is true even if a parent has not been super (or even sort of) involved in these types of decisions in the past.

While that answer may be frustrating to hear, my experience shows that you at least need to give the other parent the opportunity to have a say. With everything surrounding dealing with COVID-19, communication with your co-parent is key to navigating these tricky waters.

What if your co-parent hasn’t taken an interest in medical decisions in the past? Inaction in the past is generally not accepted as an excuse by the court should your co-parent bring this up at a later hearing. Especially as this vaccine is not something that any of us have dealt with before.

So, what do you need to do? You need to give your co-parent the opportunity to have input about your children getting the COVID-19 vaccine. If they don’t provide a response that’s okay. You can at least show the court, if necessary, that you tried to involve them in the decision-making process.

How should you communicate with your co-parent about having your children vaccinated for COVID-19?

I believe that positive communication is the key to co-parenting, particularly during the COVID-19 pandemic. Whether it’s through a co-parenting app, text messages, emails or, even face to face, you need to discuss issues about your kids with your co-parent.

I get it. You’re divorced for a reason and talking to your co-parent doesn’t rank high on your list. Sorry, but you got to do it.

What’s the best way to communicate with your co-parent about your children receiving the COVID-19 vaccine?

Here are my dos and do nots:

  • Do not spring the topic on your co-parent at a custody exchange, particularly if you think a discussion will be needed. The last thing that your kids need is to see you fight over an issue that directly affects them. It doesn’t make them feel great. Plus, there just isn’t enough time to really get into your reasons for, or against, the vaccination.
  • Do not make an appointment for the vaccination before you address the topic with your co-parent. He or she is likely going to feel ambushed and that you are going to do what you want to do regardless of their response. If they go into the conversation thinking that their input isn’t valued, chances are the conversation is not going to go well.
  • Do provide documentation supporting your position, particularly from a trusted medical source. If you and your co-parent have trust issues, the conversation may go better if you can provide scientific articles or, even better, a letter of recommendation from your children’s doctor. Even if they don’t trust you, your co-parent is more likely to ultimately agree with your position if it’s back by someone else that they trust.
  • Similarly, if you and your co-parent do not communicate well in person, do send your request however you usually communicate with him or her. If that’s through email, fine. Just make sure that you lay out your reasonings and give the other parent ample opportunity to respond before moving forward.
  • If you are concerned that this may come up in a court proceeding later, do document this discussion. For example, if you and your co-parent agree in person but you are afraid that your co-parent may, ahem, misremember the conversation later, follow up with an email or text confirming the decision. Save that communication just in case you need it later.
  • Worried your co-parent will just ignore you? I would suggest you do follow up your communication with a second one. In that message, indicate that if you don’t hear from them by a certain date then you are going to move forward with having your children vaccinated. Send it with an email or text read receipt if possible. If they really care, they’ll respond. Again, save the documentation and the receipt.

By following the tips above, you will ensure that you have the best chance that your co-parent will agree with your position and allow for your children to receive the COVID-19 vaccine. And, if not, and you have to litigate this issue later on, then you have also set yourself up for showing the court that you attempted to address this issue with your co-parent without involving the judicial system. Win-win.

What should you do if you and your co-parent still disagree about children receiving the COVID-19 vaccine?

You may be saying right about now that you followed the above tips and your co-parent still doesn’t agree. Or, are you saying, it doesn’t matter how you bring up this issue, you just know they won’t agree no matter what I do? Don’t worry.

It is very possible that you and your co-parent won’t agree on your children receiving the COVID-19 vaccine. But all is not lost. With anything where you and your co-parent don’t agree, you can always bring the issue to an attorney and then, ultimately, to the family court system. While I don’t relish bringing these types of issues to court as they are really decisions that parents should be making for their kids, sometimes you have no choice. So, if you and your co-parent don’t agree, then that is what you will need to do.

What is the best way to start this process?

First, if you are working with an attorney, I would contact him or her about the disagreement and get their opinion as to what you should do next. If they think that contacting the other side’s counsel and appealing to his or her attorney to speak to their client will work, then take that advice. They may also want you to do more communication than you did to set yourself best up for litigation. They are going to know what is going to make your case most successful in your court system and so I highly encourage you to follow their advice.

Second, if you’ve done everything you can do outside the court system and you still can’t come to an agreement then you will need to file a petition or motion to have this issue decided by a judge. The petition should lay out your reasoning for why you want your children to receive the COVID-19 vaccine and what you have done to communicate this request to your co-parent. In my experience, the court will want to see you tried to resolve this without just filing a petition right away.

Finally, the next step is to pursue the petition at a hearing. Bring in any evidence that you have to show your attempts to discuss this issue with your co-parent. If necessary, bring in scientific experts to show why it is your children’s benefit to receive the COVID-19 vaccine. This is particularly necessary if your co-parent is claiming that your child or children have some specific medical issue that should preclude them from receiving this vaccination.

What will a judge likely do if you bring the issue of vaccinating your children to court?

So, you may be asking, after all of this communicating and filing, what is a judge going to do about this anyways? Good question. When dealing with legal custody issues such as the COVID-19 vaccine, a judge will look at the reasoning of why a parent is withholding their consent. In general, the court wants to see that this reasoning is not “unreasonably withheld.”

How do you show that the other person’s withholding is unreasonable? Well, why are they saying no? Is it because your child has a specific medical issue that puts them at high risk for COVID-19 vaccine side effects? Does he or she have well-established religious objections to vaccinations? Or, is your co-parent’s reasoning not based in fact or scientific evidence?

If it’s the former, a judge will likely find the objections to be reasonable. If it’s the latter, then a judge is likely going to find the withholding of consent for the COVID-19 vaccine to be unreasonable. In speaking with judges where I practice, I have found that their position is that they are going to follow the CDC guidelines when deciding whether children can be vaccinated.

In other words, unless there is a unique reason for your child not to be vaccinated, your judge is likely going to find that your children can receive the COVID-19 vaccine.

Three takeaways for what to do if you and your coparent disagree about the COVID-19 vaccine

Make sure you do these three things if you and your co-parent disagree about your children receiving the COVID-19 vaccine:

  • Communicate with your co-parent as soon as possible about why you want your children to receive the COVID-19 vaccine and give them ample opportunity to do their own research and respond;
  • If you and your co-parent disagree and you want to pursue the issue further, seek out the advice of an attorney about filing a petition with the court to resolve the issue; and
  • Provide evidence to the court that you attempted to resolve this issue with your co-parent before filing the petition and why their objections are unreasonable.
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Do you have a question about child custody or another family law issue?

Please contact one of our family law lawyers to see how we can help.

______________

Elizabeth J. Billies, Partner

Liz practices all areas of family law, including but not limited to, preparing pre-and post-nuptial agreements, obtaining no-fault and fault divorces, as well as litigating and settling equitable distribution, custody, and support matters.

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