Vaccination Disputes in Child Custody Matters

May 18, 2021 Divorce, Parenting & Kids, Post-Divorce, Pre Divorce

When Parents Disagree on the COVID-19 Vaccination

The Food and Drug Administration just announced that children 12 to 15 years old are now eligible to receive the Pfizer Covid vaccine. Children as young as 6 months old may soon be able to receive the vaccine after ongoing clinical trials are complete.

But what happens when divorced, legally separated, or unmarried parents disagree on whether to vaccinate their child?

The right to vaccinate your child depends on what kind of child custody you have.

Who makes vaccination decisions when co-parenting?

In Wisconsin, the right to make medical decisions for a child is a “major custodial decision.” There are two types of custodial decision-making rights in Wisconsin:

  • sole custody – in which one parent has sole decision-making rights
  • joint custody – where both parents have equal decision-making rights

Under Wisconsin law, the judge cannot make medical decisions for a child—he can only decide which parent should have the right to make medical decisions. There is a presumption in Wisconsin that parents should have equal decision-making rights and should make all medical decisions jointly. The allocation of decision-making rights between parents will control how they make decisions about the Covid-19 vaccine.

Sole Custody & COVID-19 Vaccine Decision-Making

If a parent has sole custody, he will be able to unilaterally decide if his child should be vaccinated—even over the objections of the other parent. If the non-custodial parent disagrees with the custodial parent’s decision, the non-custodial parent can file a Motion setting forth the reason why she does not want her child to be vaccinated and requesting a change in custody. However, such motions may not wind their way through the court system to a final decision for several months—in which case it may be too late if the custodial parent exercises his right to vaccinate the child.

Joint Custody & COVID-19 Vaccine Decision-Making

A more complicated situation arises when the parents share joint custody. Under a joint custody arrangement, neither parent has superior decision-making rights over the other parent. They must agree on all major decisions—including medical decisions and whether or not to vaccinate their child.
If the parties cannot agree, it would be a violation of the joint custody arrangement for one parent to vaccinate the child against the wishes of the other parent. So, if you are the parent who wants to vaccinate the child, or if your co-parent has vaccinated the child over your objections, what can you do?

We Have Joint Custody—But How Do We Break and Impasse?

Short Answer: Go to court.

If the other parent vaccinated the child without your consent, you can file a contempt action. You might also file a Motion seeking to modify the custodial arrangements. A contempt action would allege the other parent willfully and intentionally violated the joint custody arrangement and would ask that they be punished as a disincentive to commit future violations. A motion to modify the custody arrangements would allege that the parent who violated the custody order should no longer have joint custody (or at the very least should not have custody rights regarding medical decisions) since he usurped those rights, overstepped his bounds, and in doing so, proved he will not cooperate to exercise joint custody.
If you are at an impasse but neither parent has broken the custody arrangements by unilaterally vaccinating the child, the parent who wants the vaccination can bring a Motion seeking a modification of the custody arrangements to give them the right to vaccinate the child.

Any court action, however, is likely to take several months to finalize—and there are many factors the court must consider when deciding which parent should make medical decisions which may or may not mitigate in favor of the result you want. Some factors the court might consider include:

  • The parents’ historical choices—have the parents vaccinated their child in the past?
  • The recommendations of medical professionals—is the child’s pediatrician or other regular doctor recommending the vaccination for the child?
  • The parents’ level of communication and cooperation—have they been able to make medical decisions jointly in the past?
  • What are the parents’ reasons for their respective positions on the vaccination and are those reasons rational and legitimate?
  • What is in the child’s best interests?
Option 1: Ask The Child for His or Her Input

Children 12 to 15 years old are likely old enough to express an opinion about whether or not they want to be vaccinated. Furthermore, if the parents end up going to court over the issue, the court is obligated to consider the child’s wishes—and even though the child does not get to decide, the court is likely to give some measure of weight or credibility to a pre-teen or teen’s opinion.

Option 2: Defer to a Neutral Third Party that Both Parents Trust

Parents at an impasse may choose to leave the decision up to a neutral third party—such as the child’s pediatrician. Or, they may choose to be guided by the requirements or recommendations of the child’s school district. If the parents cannot agree on the decision to vaccinate, they might at least agree on an alternative method reaching an agreement.

Talk to a Child Custody Lawyer

Ultimately, courts do not want to make parenting decisions, but when parents cannot agree, courts will step in. In such situations, parents end up subordinating their roles and their rights to make decisions to a stranger—a judge. And that judge is likely to see the parents’ disagreement and inability to work together as far more toxic to the child than any vaccine.

If you have questions or concerns about how to make medical decisions under your current custody arrangements, please call us for a 100% confidential consultation!