COVID Vaccines Pose New Challenges for Parents, Attorneys and Judges

Girl getting a vaccine from a health professional
Family law attorneys say court battles are looming in cases where parents disagree about whether their children should receive the COVID-19 vaccination. / Photo courtesy of the CDC.

For some divorced parents, the rollout of COVID-19 vaccines for children as young as 12 has provided yet another source of conflict. With drugmakers eyeing approval of vaccines for even younger age groups, family law attorneys expect a surge in disputes involving parents who disagree about whether their kids should get the shot.

Parenting spats over vaccines pre-date the pandemic. The public’s trust in vaccines in general has eroded in recent decades. According to a 2019 Gallup poll, 84% of Americans said it is “extremely important” or “very important” for parents to have their children vaccinated — a 10 percent drop from 2001. Colorado has some of the lowest childhood vaccination rates in the country. In 2019, less than 89% of Colorado kindergarteners had received the measles, mumps and rubella vaccine, the lowest vaccination rate of any state that year.

As anti-vaccine sentiment has grown, vaccines have emerged as a point of contention between divorced parents. Colorado Springs attorney Carl Graham, who has been practicing family law for more than 20 years, said he saw his first case involving a dispute over vaccines about three or four years ago. “Prior to that, it just never really seemed to arise,” he said. Since then, Graham has been including language about how to handle vaccines as a standard clause in parenting plans. 

‘Judges Tend to be Mainstream’

Vaccination is considered a major decision that requires the consent of both parents if they have joint custody. Most of the time, parents are on the same page about vaccines, Graham said, but he has litigated vaccine disputes twice in recent years. In both cases, the conflict was resolved in favor of the pro-vaccination parent. Graham said that every attorney he has spoken with about the issue had a similar experience.

“Judges tend to be mainstream,” Graham said. “You can’t really say that they’re pro-vaccine so much as they are pro following the norms, unless both parents agree to the contrary.”

Jennifer Helland, also a Colorado Springs family law attorney, agreed that judges tend to give decision-making power to the parent who favors vaccination, but she said the way they approach disputes has changed. 

“I’ve seen a shift over the last 10 years,” said Helland, who has represented several parents who are anti-vaccination. “When I first started tackling this issue, the group of judges that we had on the bench locally were more inclined to look at what the parents had historically done.” If they had opted out of vaccination in the past, she said, the judge would require a joint decision to change that.

According to Helland, in the past five years there has been a tendency for judges to order parents to get a recommendation from a pediatrician and then follow that recommendation. “Effectively, the pediatrician becomes the decision maker,” she said.

Thomas Cossitt, a family law attorney in Ft. Collins, said judges are “likely to be in favor of what the pediatrician recommends, and they’re likely to favor the parent who favors the pediatrician’s recommendation.”

There is very little Colorado case law involving vaccines and child custody. The Colorado Court of Appeals issued its second published opinion addressing the issue in January. In that case, Marriage of Crouch, the parents agreed not to vaccinate their children without a mutual agreement or court order, but the father later had a change of heart. The mother raised religious objections to vaccines. The district court concluded that because vaccination would interfere with the mother’s religious rights, the father must meet an additional burden in proving substantial harm to the children if they remained unvaccinated.

However, the appellate court reversed, finding that the mother’s free exercise rights were not implicated because the court was not mandating the vaccine but simply deciding which parent should have decision-making responsibility. “In that instance, you don’t need to consider either of their constitutional rights,” said Griffiths Law shareholder Chris Griffiths. “You just need to consider which one of the two parents acts more in the best interest of the child.”

“We’ve got a complete paucity of decisions,” Graham said, adding that Colorado’s two published appellate decisions did not contain the strong pro-vaccination language seen in some other states. As Graham noted in an article in the Colorado Family Law Guide, courts in several states, including Pennsylvania, Illinois and Texas, have awarded sole decision-making rights to parents who are pro-vaccination.

COVID Could Be Different

Attorneys say the COVID vaccine is uniquely contentious, making it difficult to predict how courts will handle disagreements. Helland said that all the cases she’s aware of in other states deal with vaccines in general, and not specific ones that are more controversial, such as the HPV vaccine. “I think that’s where COVID is going to be different,” she said. “Because there’s a lot of people who vaccinate and have no problem doing the traditional childhood vaccination schedule that will not vaccinate for COVID.”

A poll released earlier this month revealed more than a quarter of U.S. parents do not plan to have their child vaccinated against COVID-19. By comparison, childhood vaccination rates hover around 90% for polio, MMR, Hepatitis B and chickenpox. 

“Far fewer people have opinions about whether vaccinating against measles is a good idea,” Griffiths said. “It used to be some tiny fraction of the population that cared about that sort of stuff, but now everyone’s got an opinion, whether they’re Republicans or Democrats or where they live in Colorado. People are way more opinionated. That’s certainly unique about COVID and the vaccine.”

“There has been a lot of fear and a lot of uncertainty amongst parents,” said Cossitt, the Ft. Collins-based attorney. “The majority of parents that I’ve discussed the COVID vaccine with want to wait for the science, they want to hear from the pediatrician and they want to discuss the options with the other parent.”

Several attorneys said they expect battles over the vaccine to intensify if the shots are approved for children younger than 12. Pfizer and Moderna are currently testing their vaccines on young children, and a panel of Food and Drug Administration advisors met June 10 to discuss standards for pediatric use of the vaccine.

“You’re going to see more parents who disagree about whether or not a one-year-old should be vaccinated than you see disagree about a 16-year-old getting vaccinated,” Griffiths said. “So I think that the disputes are sort of looming. They’re coming.”

COVID vaccines currently have emergency use authorization under the FDA, Helland noted, and their long-term side effects are unknown. Children with COVID-19 tend to experience only mild symptoms, she added, and she is aware of many “everyday, mainstream pediatricians” who are saying they won’t recommend the vaccine for children. All of this makes it difficult to predict whether judges will decide a COVID vaccine is in the best interests of the child.

“I think that the judges are going to look more at why somebody wants to object to the COVID vaccine,” Helland said. “Is there a medical need for it? Is somebody in the household immunocompromised, for example?” 

Carolyn Mirabile, chair of the family law group at Philadelphia-based Weber Gallagher, had two COVID vaccine disputes involving children who live with grandparents. While the courts in those cases did not require the children to get vaccinated, she said, “they were certainly highly recommending it for the safety of the grandparents.”

Mirabile said she is also seeing COVID vaccine disagreements in cases where the child has a preexisting condition such as asthma. Many of the cases have been prompted by summer vacation plans, she added. “One parent wants to travel somewhere with a child who has a special need or a medical condition,” Mirabile said, “and so there has been a discussion about whether the child would get vaccinated.”

Mirabile said she expects to see more parents filing in custody court if schools require students to be vaccinated. “I think the best advice we’ve been giving to all of our clients as it relates to school and vacations is to have the discussion as soon as possible,” she added.

School vaccination requirements could affect how judges view the best interests of the child, according to Helland, particularly if schools require unvaccinated children to wear a mask at school. “It’s almost a ‘scarlet letter’ type situation,” she said, and courts could consider the social ramifications of remaining unvaccinated in addition to the health effects.

“It will be interesting to see how the court resolves when one parent does have the child vaccinated over the objection of the other parent,” Cossitt said. In those cases, a judge could find the pro-vaccination parent in punitive contempt of court and issue a fine or jail sentence. “But the punishment is probably going to feel like a slap on the wrist to the parent who didn’t want it done,” Helland said.

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