The COVID-19 Vaccine for Children: An Issue of Legal Custody

As if there is not enough controversy in the world, the next debate will be whether or not children should be immunized with the COVID-19 vaccine and the possible resulting school choice.  In family law, this translates to disputes over legal custody:  Should one parent be entitled to make medical and school decisions for a child?

Mandatory vaccinations to attend school or daycare.  At this time, we do not know any of the details about the COVID-19 vaccine for children, including at what age children should or can be vaccinated. However, we are almost assured there will be such a vaccine.  Once the vaccine for children exists, there is likely to be little to no controversy about a child needing to be immunized if the child is to attend public or private school, as well as daycare, because the news from the State of California is that COVID-19 will be a mandatory vaccine in order for a child to attend school or daycare, just like other vaccines (for example, the polio vaccine, measles vaccine, and the chickenpox vaccine). 

In the not-too-distant past, parents in California could seek exemptions from immunizing their children based on personal or religious beliefs.  Commencing in 2020, personal belief and religious exemptions were removed from the books in California.  Now, the only way to get an exemption is through a medical exemption.  Medical exemptions are no longer reviewed by a school but instead are now a process that gives public health officials the final say on those exemptions.  Clearly, public health is the over-arching goal. 

The legal questions. If the COVID-19 vaccine is optional for a child (which seems unlikely), like a flu shot is optional, the legal question is what happens when parents disagree over the optional vaccine?  Or, taking this a step further, what if a parent objects to a mandatory vaccine and therefore seeks to home school their child in order to avoid the need for mandatory vaccines?  When should a parent be able to unilaterally attempt to secure a medical exemption from a mandatory immunization so as to allow the child to attend school or daycare?

A child’s vaccinations, seeking a medical exemption from a mandatory vaccine, or how and where to educate a child, are issues of legal custody.  Most parents share joint legal custody and therefore must agree on these decisions.  The problem however arises when they do not agree, and each parent then seeks sole legal custody or an order from the court to make the medical and/or school decisions unilaterally.  Here are some ideas to consider when the issue of which parent should be the sole decision-maker over these issues are presented to the court:

  • Evidence Supporting / Against Vaccinations: At court, both parents will have the opportunity to present evidence supporting their position regarding immunizations for the child. 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 vaccination.
  • Evidence Regarding School:  If a medical exemption is not granted and a parent still does not want the child vaccinated, then the school option is that of homeschooling.  The parent should be prepared to present evidence about the homeschooling program and why the program, and possible lack of socialization of the child, is in the child’s best interest.  Possibly, an education expert should testify.  Regarding homeschool, will the parent who seeks homeschool have the time and ability to be the teacher for the child; and can this be afforded economically if this would require a parent to stop working? 
  • Parental Involvement: When making its decision, the court may also consider which parent has historically been most involved in the child’s medical care and education. For example, if the child’s mother, who is opposed to giving the child the COVID-19 vaccine, has been primarily involved with the child’s education and medical care, the court may give more weight to the evidence presented by the mother.  

The COVID-19 pandemic has created unchartered territory for family law attorneys and parents. Issues relating to the immunization of children with the COVID-19 vaccine is an issue that is only starting to be considered as the vaccine becomes available to the masses. Thus, a strong strategy is critical to navigating these upcoming challenging decisions and issues.