A common question for many divorce lawyers is, “how are medical issues decided in joint-custody situations?” This question comes up when divorced couples discuss normal childhood vaccinations such as measles, tuberculosis, polio, and typhoid, but it has increased recently now that the COVID-19 vaccine is available for children 12 years and older. The answer is that vaccinations and other non-emergency issues need to be decided upon by both parents. Even if one parent has the majority of physical custody, joint custody does not dictate the absolute authority of one parent as the sole decision-maker for these types of issues.
If there is a dispute that cannot be resolved through civil conversations, mediation, or the advice of the child’s pediatrician, the court will look at the custody agreement and parenting plan submitted when a divorce was granted, and the custody settled. In most joint-custody agreements, the right to consent to a vaccination or medical procedure requires both parents to agree.
In other words, if one parent does not agree to it, then that parent can stop the child from getting vaccinated. At that point, the court can be asked to step in and use their judgment to determine what is in the child’s best interest. The court will take into consideration the specific facts of the case, such as health risks, school or activity requirements, and of course, each parent’s reason for or against the vaccination. Courts don’t want to raise children but will convene to make such decisions when it comes to the welfare of children.
Though it is impossible to know what is coming next, when working with a family law professional on a joint-custody agreement, each parent should give special consideration to the language that outlines the decision-making process for non-emergency health events and cite considerations for future decisions when they arise.
Similar to issues in a contentious divorce, the disagreement over vaccinations is not going to disappear overnight. Divorced parents should strive to have honest conversations about their children’s health. The conversation should be rooted in facts and not in the emotional baggage of the past. And even though it is difficult, it also needs to be based on respect because ultimately, both parents have the best interest of the child in place, and it’s not about winning – it’s about safety.