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In the Age of COVID…Vaccinations are a Contentious Legal Custody Issue

As family law attorneys, we commonly litigate custody cases involving issues such as visitation and support. In recent years, we have noticed a new issue on the rise with regard to custody issues: Legal battles involving the immunization of children.

In California, the Court can make child custody determinations regarding “legal custody” and “physical custody.” Generally, decisions regarding a child’s medical treatment and overall well being are made at the discretion of the parents. A parent with sole legal custody is expected to make any and all medical decisions for the child. However, parents who jointly share legal custody can, in some cases, have very different opinions when faced with these important decisions.

In the case of vaccinations, there are times when one parent wishes to vaccinate the child while the other parent objects. Objections can be medical, religious, or philosophical by nature and are often referred to as personal belief exemptions.

What is the California Law on Immunizations

California’s new vaccine law, SB276, took effect January 1, 2020 and is designed to make it more difficult for parents to obtain illegitimate medical exemptions that allow children to avoid vaccinations. Medical exemptions are allowed for children with compromised immune systems, and who would not be able to safely receive certain vaccines. Personal or religious belief exemptions are no longer available.

This new law states the no child can be admitted or enrolled in any public or private daycare, preschool or traditional school unless they are immunized. This update eliminated exemptions based on personal beliefs. This change cites the important role of immunizations in the arena of public health.

Required immunizations include:

  •      Diphtheria
  •      Hepatitis B
  •      Haemophilus Influenzae Type B
  •      Measles
  •      Mumps
  •      Pertussis (whooping cough)
  •      Poliomyelitis
  •      Rubella
  •      Tetanus
  •      Varicella (chickenpox).

Under the updated immunization law, it is possible for the court to order a child to be vaccinated when the personal beliefs of the parents differ. If one parent wishes to vaccinate, but the other objects, it is possible that the Court will step in and order the child vaccinated. Courts make decisions based on what they deem to be in the “best interests of the child” and recent California decisions appear to indicate that the Court prefers to bestow decision making power to the parent best able to make an informed health decision about vaccinations. Court ordered vaccinations have been more common under the new law since a lack of vaccinations can prevent a child from receiving proper education.

What Does This Means for the Covid-19 Vaccine

The initial rollout of the COVID-19 vaccination has begun in the United States. By the end of 2021, widespread dissemination of the vaccine is anticipated. In November 2020, Pfizer broadened its trials to start testing children as young as 12, with Moderna following suit shortly thereafter. Doctors, including Dr. Anthony Fauci, predict that there could be a vaccine available for children by mid-to-late 2021.

This begs the question- Will the Covid 19 vaccine be treated like the other required immunizations in California and elsewhere? And what if you don’t want your child to be vaccinated? Do you have any recourse before the Courts?

If your COVID-19 vaccination dispute does come before a court, there are a few things that you should keep in mind:

  • Evidence Supporting / Against Vaccinations: At court, both parents will have the opportunity to present evidence supporting their position regarding the COVID-19 vaccination. In general, the personal opinions of each parent will likely not carry much weight with the court. Rather, one should consider presenting testimony from the child’s medical providers (such as the child’s pediatrician) regarding the child’s medical history and testimony from medical experts supporting or advising against the COVID-19 vaccination.
  • Parental Involvement: When making its decision, the court may also consider which parent has historically been most involved in the child’s medical care.

Ultimately, the court will balance these above-mentioned factors, among others, to determine what is in the best interest of the child.

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