Divorced and unwed parents often share legal custody of their child or children, whether by agreement or court order. Joint legal custody is generally celebrated as a positive thing because it grants both parents equal rights to make major life decisions for a child such as matters involving the child’s education, medical care, and emotional, moral and religious development.
However, as one can imagine, requiring two people whose relationship likely ended at least in part due to their inability to effectively communicate to find consensus presents its challenges.
For instance, until the child reaches adulthood and the age of consent (typically 18), parents or others who share legal custody of a child must agree on all non-emergency medical treatment, including preventive care such as vaccinations. The current social and political climate regarding the COVID-19 vaccine is no exception and has caused many parents to seek the advice of experienced family law attorneys about whether or not to vaccinate the child and what to do if they cannot agree.
The CDC currently recommends that everyone 12 years and older should get a COVID-19 vaccination to help protect against the virus. But, in a nutshell, absent the agreement of both parents to vaccinate a child or a court order mandating it, a child cannot be vaccinated.
Next Steps
If parents cannot agree, the probate and family court can step in to make the decision for them. When asked to make these types of decisions, the court is required to determine what is in the best interests of the child.
This necessarily becomes a case-specific inquiry, and will typically include hearing from both parents to assess the credibility of each, to learn each parent’s reasons for/against the vaccine, to ascertain whether there are any specific/unique health risks to the child and/or the family as a whole, and to determine whether there are any vaccine mandates or requirements for the child’s school or extra-curricular activities. Unsurprisingly, the court will also want to know what the child’s pediatrician recommends, and why.
Neither the court nor parents want a judge, a stranger to their family outside of the courtroom setting, to determine what is best for their child. Accordingly, parents should explore all possible options to reach an amicable resolution, including but not limited to seeking a second opinion prior to filing a court action and utilizing the services of a mediator or parent coordinator to facilitate a productive discussion about the vaccination and what is in the best interests of the child.
Custody Risk
Moreover, filing with the court does not come without risk. Asking the court to make the decision because the parents are unable to could put a parent’s legal custody in jeopardy.
In certain circumstances, a court could conclude that the parents do not possess a willingness and ability to work together to jointly make decisions for the child and that continuing to share legal custody is an invitation to continued warfare and conflict. Such a finding could force a court to award sole legal custody or final decision-making authority to one parent and strip the other parent of his or her rights to make those important life decisions.
Parents are therefore well advised to consult with an attorney prior to seeking court intervention.
Lynette Paczkowski is an attorney at Bowditch & Dewey in Worcester, Mass. She routinely guides and helps individuals navigate prenuptial agreements, divorces, child custody issues, and other domestic and familial disputes. She also represents individual and corporate clients from various industries, including construction, utility, professional services, real estate, nonprofit and education, in litigation matters and litigation-avoidance strategies, including in the areas of construction litigation, land use disputes and tort-related claims.
