The CDC has recently approved COVID-19 vaccines for children ages 5-11, meaning that all children between the ages of 5 through 18 are now eligible to receive the vaccine. The result is causing questions to come up in family law and courts. What happens if parents who share custody disagree on whether their child should get vaccinated against COVID-19?
Can I Vaccinate My Child?
In Arizona, the term “legal custody” has been changed to what is now known as “legal decision-making.” This is the authority to make major life decisions for your child’s healthcare or education. The COVID-19 vaccine would fall under a major healthcare decision and, therefore, the decision to vaccinate your child would be determined by the type of legal decision-making you have. If you have sole legal decision-making, then you would be able to decide “solely” if your child is to receive the COVID-19 vaccine and you would not need to get consent from the other parent. If you share joint legal decision-making, then you and the other parent would have to both agree to vaccinate your child and neither of you could make that decision solely.
Getting the Court Involved
If you share joint legal decision-making and cannot both agree to vaccinate your child, then you may have the option to involve the court. This can happen a few different ways but ultimately you would be asking the court to either bar the other parent from vaccinating your child or asking the court to give you authority to vaccinate your child over the other parent’s wishes.
Courts in Arizona have a fine balancing act that they must perform whenever there is a child custody battle. The court has to determine what the best interests of the child(ren) are versus respecting the rights of a parent. Arizona courts will mostly try to uphold and honor the rights of both parents unless a parent shows that the other parent is unfit or unable to make decisions that align with the best interests of the child(ren). There is even some recent case law from the Arizona Court of Appeals and Arizona Supreme Court where the appellate courts express the idea that the courts are not there to parent the child(ren) over the parents but are there to reinforce and decide who gets to parent/make decisions for the child(ren).
Thus, a parent would have to prove to the court that not vaccinating the child would result in irreparable harm/serious injury. If a parent is able to reach that standard, then the court may order the child to be vaccinated over the wishes of the other parent. This is an extremely high bar to clear and unlikely to occur in our estimation.
From a practical standpoint, we have not dealt with this issue much as it is still very new. However, we were involved in a case where a parent filed an emergency motion to prevent the other parent from vaccinating a child over the filing parent’s objection. The court in Maricopa County denied the motion and set the issue for an evidentiary hearing.
Bottom Line
Bottom line is that there is so much uncertainty surrounding the COVID-19 pandemic and that uncertainty has trickled down to the court system when it comes to child custody disputes. Because of this uncertainty, judges have the discretion to determine if a child can get vaccinated over one parent’s objection or not. If you share joint legal decision-making with the other parent, then you are potentially facing a lengthy custody battle in court that will most likely not lead to the result you are looking for. It is best to try and work out the dispute with the other parent and reach an agreement outside of court.