Covid Vaccine Debate & Parenting Issues

What happens when divorced or separated parents can't agree on whether their child should receive the Covid Vaccine or what happens if a parent chooses not to get the vaccine and still wants their custodial or non-custodial parenting time? A recent article in the New York Law Journal was written due to the writer's concern that this could be the next major new issue for the Family Court and Supreme Court Divorce Parts to have to grapple with.

The issue about whether to vaccinate or not has been around for many years. Certainly not in my professional career of 39 years has there been a world wide pandemic, with millions of people infected in this country and over 450,000 deaths. Even now as vaccines are being offered there are concerns about mutations of the virus and whether the current vaccines will be effective against the mutations. There are unanswered questions as to the length of protection if you receive the vaccine and whether, like the flu shot, an annual new shot(s) will be necessary.

So given the seriousness of the Corona virus and that there are still so many unanswered questions what will the courts do when parents can't agree on whether to vaccinate their children? Unlike other infectious diseases where school districts have required vaccination to attend public school that has not yet taken place and it is unknown whether it will be become a requirement for public school in person attendance. Some parents even before Covid have chosen home schooling for a variety of reasons.

The Courts generally try not to interfere with parenting decisions that are not arbitrary, capricious and that are not dangerous to the child's well being. However, given the potential serious consequences of Covid this may take us in a new direction. Typically when parents can't agree on medical decisions the Court will want to appoint an attorney for the child, will want to know what the recommendations are of the child's doctor, will want to know if there are any existing health concerns or conditions of the child that put the child at greater risk if not vaccinated and likewise whether those conditions could cause other problems for the child if vaccinated. Judges and lawyers are not doctors and therefore, in my opinion, competent medical advice and recommendations (listen to the scientists) provides valuable information. Competing with that is the parent's right to make decisions for their own children without the "state" intervening.

While, I believe that the majority of parents will want their children protected by the vaccine, there will be cases eventually coming into the courts for determination. Each judge may hold a different view, each case may have different facts. So at this point there is no one easy consistent answer. I believe that initially both parents (if they are not in agreement) should try to learn as much as possible from reliable sources and also weigh the risks of their decision on the welfare of the child. Always put the child first and listen to the views of each other and try to reach an agreement.

If a parent chooses not to get vaccinated, should that affect the parent's right to see the child and under what conditions (masking, social distancing)? Clearly the Courts cannot order a parent to be vaccinated. Is it reasonable for a parent not to permit a vaccinated child from seeing a non-vaccinated parent? I suspect that visitation will be permitted. Even prior to the vaccine distribution the Courts generally encouraged visitation during the Covid pandemic absent some very clear and specific risk situations.  

So the caselaw will evolve on this topic as more is learned about the virus, the vaccine, local requirements and long term protection.