Nearly a year ago, one of our fellow family law practitioners correctly predicted a surge in disputes about whether children should receive the COVID-19 vaccine. Parents who historically agreed to vaccinate their children against polio, MMR, Hepatitis B and chickenpox are not seeing eye-to-eye on the COVID-19 vaccine. Whether this is a political dispute or a concern over the speed of the vaccine approval process, the cause of the dispute is irrelevant. When there are two parties who, in good faith, are both acting in a manner they perceive to be in their child’s best interest, the court is placed in the unenviable position of resolving the dispute.
How do vaccination issues arise?
The dispute appears to center around the perceived benefits and possible side effects from the vaccine. Parties also disagree regarding when and where masks are appropriate or necessary, the appropriate size of social gatherings and where and how the children may travel. Parents disagree on whether children should resume in-person learning or in-person activities. These questions become even more complex and personal where a parent or new significant other is immunocompromised or caring for an elderly parent.
Under the Supreme Court’s 2000 decision in Troxel v. Granville, it’s unlikely that one parent can control the other’s behavior, vaccination is a major medical decision requiring the input of both parents.
According to Colorado’s latest COVID-19 data, many parents argue that children need the vaccine to prevent infection and to allow participation in public activities. In Colorado, 34.2% of children ages 5 to 11 and 62% of children ages 12 to 17 are fully immunized, but the COVID vaccine isn’t required for children to attend childcare or school.
On the other side, some parents question the necessity and efficacy of the vaccine, which has only been granted emergency use authorization. When resolution fails, the legal process begins.
How to obtain a “decision”?
Parents who are just beginning the divorce or allocation of parental responsibility process, will need to request temporary orders under Colorado law. Each parent may ask the court to grant him or her sole decision-making authority for medical decisions. But a more targeted request seeking sole decision-making authority on the vaccine issue may be a less drastic request and may have a greater chance of success.
A court’s decision at a temporary orders hearing doesn’t mean that parent will have sole decision-making once the court enters permanent orders. The court is permitted to allocate decision-making in the manner it deems in the child’s best interests, without regard to its temporary orders on the subject. This of course may be moot after the vaccine has been administered.
For parents who already have orders for joint decision-making, either as part of a decree or from orders allocating parental responsibility, the issue of vaccination is a major medical decision requiring both parties’ consent. When an impasse occurs, courts may take action in one of two ways: 1) under state law, a court may reallocate decision-making authority if it finds that retaining the current joint decision-making order would endanger the child; or 2) based on the Court of Appeals ruling last year in In re Marriage of Thomas, the court may step in and make the decision regarding the disputed issue itself in the child’s best interests.
It can be challenging to convince a court to reallocate decision-making authority from joint to sole. The court is statutorily required to retain the joint decision-making allocation from the prior decree unless doing so “would endanger the child’s physical health or significantly impair the child’s emotional development” and the harm likely to be caused by a change in decision-making responsibility is outweighed by the advantage to the child. The endangerment standard also must be applied where a court is asked to change which parent has sole decision-making for the child, pursuant to the recent appellate decision in In re Marriage of Crouch. But courts are reluctant to conclude that a child is in danger by getting or forgoing a vaccine, including the COVID-19 vaccine.
In its 2021 In re Marriage of Thomas decision, the Court of Appeals concluded that when parents who share joint decision-making are unable to make a joint decision on a particular issue, the trial court may properly exercise its authority and make the final decision. The Thomas Court appropriately cautioned parents to heed the Colorado Supreme Court’s warning that district courts are “stranger[s] to both child and parents, [and] ill-equipped to understand and act upon the needs of the child.” Parents are in a much better position to make decisions for their children, and should seek the court’s assistance in resolving an impasse only after exhausting all other avenues.
Unfortunately, the dispute doesn’t necessarily end once decision making has been determined. What happens when a parent without decision-making authority decides to have the children vaccinated? Normally a violation of a court order justifies a contempt proceeding. Here, however, there is no ability to proceed with a remedial contempt and the vaccine cannot be un-administered, and thus the only option is to proceed with a punitive contempt action, according to the Court of Appeals’ 2011 decision In re Webb.
While COVID-19 is on the decline, there will likely be a new crisis at some point so clear dispute resolution provisions in agreements or orders are essential to reduce future legal disputes.
– Kelly Robinson is a member, and Madeleine Sheahan is an associate with the family law practice group at Sherman & Howard L.L.C. Their practices emphasize parental responsibilities, child support, custody, maintenance, relocation, premarital agreements through post-divorce parenting disputes and high-asset property distributions.