Legal Custody Issues with the COVID-19 Vaccine for Children

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There is a rising debate regarding 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

We currently do not know any details about the COVID-19 vaccine for children, including at what age children should or can be vaccinated. Once the children’s vaccine exists, it is most likely there will be little controversy about a child needing to be immunized, especially if the child is to attend public, private school or daycare. 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 (e.g. polio, measles, and chickenpox). 

In the past, California parents could seek exemptions from immunizing their children based on personal or religious beliefs. Starting in 2020, personal belief and religious exemptions were removed from the books in California. Now, the only exemption is a medical one. Medical exemptions are no longer reviewed by a school. Instead, they are processed by public health officials who give the final approval on those exemptions. Clearly, public health is the over-arching goal. 

The legal questions

The legal question is this: what happens when parents disagree over an optional vaccine? Or, even 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 that the child can 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. A problem 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 is 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 remaining 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. Will the parent who seeks homeschool have the time and ability to be the teacher for the child; and can this be afforded economically should this require one 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. Children receiving the COVID-19 vaccine is an issue that is only starting to be considered as the vaccine becomes available to the masses. Creating a strong strategy is critical to navigating these upcoming challenging decisions and issues.

Marlo Van Oorschot is a respected Los Angeles-based family law attorney who for over 24 years has focused her practice on resolving divorce, child custody, child and spousal support and property disputes. Due to her financial background, Marlo’s practice focuses on complex financial issues affecting the family law matter including business interests, real estate and complex financial compensation of the parties. She is the founding and managing partner of Van Oorschot Law Group, PC. Marlo excels at using the right process at the right time for each client as appropriate, including litigation and mediation.