In-Depth: What happens when divorced parents disagree over vaccination for their child?

Posted at 5:50 PM, Nov 11, 2021
and last updated 2021-11-11 20:50:53-05

SAN DIEGO (KGTV) -- Now that a younger cohort of kids is eligible for COVID vaccination, attorneys say they are seeing a new kind of vaccine debate.

It's playing out in divorce court.

Parents with shared custody over their child's medical decisions are increasingly asking judges to settle stalemates involving COVID-19 vaccination, said San Diego family law attorney Deanne Arthur. One parent urgently wants the child vaccinated. The other is opposed.

"It's been coming up a lot," she said. "It's kind of a fine line for the court to walk because in family court, they like to have a hands-off approach already."

When finalizing a divorce, judges assign two types of custody. Physical custody has to do with visitation rights. Legal custody determines decision-making on things like education, religion, and medical care.

In the vast majority of divorces, parents share legal custody equally, Arthur said. That means if one parent refuses to agree to vaccination, the two parents have to go before a judge for a ruling.

"Usually, we're coming back into court on where the kid is going to go to school or who's going to be the daycare provider," Arthur said. "But now there's this new issue of are they going to get vaccinated?"

Judges will want to know why one parent does not want the child to be vaccinated, such as a medical or religious reason. The parents will need to make their cases with evidence.

Eight states allow minors to get a COVID-19 vaccine without parental consent, but California requires it for anyone under 18.

If a married couple disagrees on vaccination, Arthur said it is perfectly legal for one parent to take the child and get them immunized without the other's knowledge.

But if a divorced parent acts unilaterally against the wishes of a parent with joint legal custody, there can be consequences.

"Your case is going to be before the court for a while, especially when it comes to custody. And so you've essentially tainted your case going forward," she said.

Among other remedies, courts can alter custody orders, she said. Taking a child to another state to get vaccinated in a bid to evade a divorce decree won't work, she added.

Courts across California are backed up, so getting in front of a judge can take months. Arthur recommends first having both parents sit down with their pediatrician or a mediator.