So you and your ex disagree about vaccinating your kids. What to do?

COVID has become more than just an illness. It is now a political statement, with both sides of the vaccine issue so polarized that they cannot see the other’s point of view.

Parents who reside together usually agree on whether the children should get the “jab.” If they don’t, one usually gives in to the other. But with more and more children growing up with separated parents, the debates on whether to vaccinate are happening more often.

In the age of COVID, the vaccination of children has become a hot topic. The topic, and arguments, become even more contentious when one parent wants the vaccine and the other is opposed. This argument did not arise as often with different types of vaccines, but because the COVID issue is so divisive separated parents are threatening each other with legal action. So, what happens when separated parents disagree? Can one vaccinate the child over the objection of the other?

The answer depends on whether there is a custody order, and if not, whether the parents were married.   Suppose the parents were never married and there is no custody order in place. In that case, the mother has the upper hand when making decisions about the child. Even if the parents live together and the father is on the birth certificate, this is true.   If the parents were married and didn’t have a custody order, neither party has the upper hand or the veto power. The lack of a custody order breeds disputes, so it is advisable to seek a custody order.

Most custody orders in Louisiana designate one of the parents as the “domiciliary” parent. Even when custody is shared 50/50, one parent will be identified as the domiciliary parent in most instances.   The domiciliary parent is the tie-breaker. This parent makes all major decisions regarding the child, such as medical and health care decisions, unless the court order says otherwise. Some court orders will require the parents to agree on major medical decisions. Others are silent on the subject. When that happens, the domiciliary parent makes the final decision. So, when only one parent wants the kids vaccinated, the domiciliary parent decides.

By law, the decisions of the domiciliary parent are presumed to be in the best interest of the child. Suppose the other parent believes the domiciliary parent’s decision will harm the child. In that case, that parent will have to file a request with the court to review the decision. It will be that parent’s burden to show the domiciliary parent’s decision is harmful. While court review is available, a hearing will be held, which will take some time to schedule. It will be expensive, as the contesting parent may need to bring in an expert witness, such as a medical doctor, to back up their position.

What happens when the other parent vaccinates the child over the objection of the domiciliary parent? Because COVID vaccines for kids have only been available for a short time, there are no established court decisions to guide us. Suppose the vaccine has not yet been given but only threatened. In that case, the domiciliary parent’s option is to seek an emergency order to stop the vaccination until a hearing can be held. If the vaccine has been given, the domiciliary parent’s recourse would be to seek to find the other parent in contempt of court.

When deciding whether to ask for court review, parents need to remember that it is the child’s best interest that the court will seek to protect in family court. The court will not protect mom or dad’s beliefs or find that one view is more valid than the other. It will look to medical professionals to determine whether the child should or should not get a vaccine.

Most mainstream medical professionals support vaccinating children against measles, mumps, and other childhood diseases. They urge parents to follow vaccination schedules, and schools require children to be immunized in most instances. The Center for Disease Control strongly supports subjecting children to the COVID vaccine. It calls the COVID vaccine “safe and effective.” The CDC’s position is the vaccine is safe, saying the vaccine was widely tested on children and was rigorously reviewed. “The benefits of COVID-19 vaccination for children ages 5 through 11 years outweigh the known and potential risks.” You can find their official position here: Myths and Facts about COVID-19 Vaccines for Children.

The CDC claims that while vaccines do not stop kids from getting COVID, it reduces the risk that the child will have serious complications. It argues that COVID ranks as one of the top ten causes of death for children 5 through 11 years. It calls the theory that a child should get COVID to build up natural immunity a myth.

While a parent may find a medical professional to testify that the vaccine is dangerous for kids, the other parent will be able to find several more that side with the CDC. Suppose medical professionals testify the child should be vaccinated. In that case, we are betting that the court will side with the parent wanting vaccination.

The bottom line is if the domiciliary parent wants to vaccinate the kids, they probably win. Suppose the domiciliary parent does not want to vaccinate the kids, and the other parent takes it to court. In that case, the court will likely allow the vaccination.

Please call our office 318-255-1760 if you need assistance with a child custody or parental rights issue. We are here to help.