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Legal Decision-Making and Vaccines

COVID is stressful and contentious enough. But when separated or divorcing parents have disagreements over vaccinating their children or sending them to school, it can be all out war. Although COVID is a recent phenomenon, disagreements about medical decisions for children has a long legal history. As recently as 2018, the Arizona Supreme Court defined the rules in a case involving a dispute over treatment for a gender non-conforming child. These same rules apply to all medical decisions co-parents must make. To understand more about the legal rules of the road, you first need to know about a concept called “legal decision making”– something your parenting court order had to have addressed.

It is the legal right and responsibility to make all non-emergency decisions regarding a child’s education, health care, religious training or personal care.

Unless you and your ex can agree, a court must decide who is in charge based on the best interests of your child. The court’s decision will be reduced to a court order and becomes part of something called your “parenting plan”.

There are several. However, it may help to imagine a jar full of jelly beans, with a different colored bean for each big decision. For example, a bean for choosing a school, another for choosing doctors and medical treatment, etc. A court could give you sole control over the whole jar, or just some of the beans. This is called sole legal decision making as to the particular issue involved. The court could also require you to jointly share legal decision making. Finally, the court could order joint legal decision making with one of you having the “final say”.

No. Let’s bring back the jelly bean jar analogy. With sole decision-making, you pick the color of the jelly beans without any second guessing by your spouse – unless a particular color would endanger your child. Having final say is different because although you have a “superior” right to pick the color, your choice can be questioned for legitimate reasons. So if you want brown beans and your ex wants pink beans, you get to choose the brown beans. The only except is if your ex gives the court a very good reason as to why brown beans are not good for your child. Then the court can overrule your final say and decide the issue based solely on the best interests of the child. Effectively, the judge can act as the “third parent”. Welcome to the family, judge!

Only if there is a serious danger to the child. Even then, the judge’s options are limited to neutralizing the danger.

So now that you understand the basic rules, let’s talk about disputes over vaccines.

If your court order gives you sole legal decision making over medical decisions, you get to decide. If you share joint legal decision making, then the court will basically act as a “third parent” and make the decision for you after a hearing. If you share joint legal decision making, but you have final say, the court still decides the issue. The difference is that all else being equal, the court must defer to your choice.

If you can show a credible risk of danger to your child from the vaccination, then the judge could potentially rule in your favor. However, you must establish that your child’s health would be in serious jeopardy from a vaccination and you have to prove this by what is called “clear and convincing evidence”. This is a fancy legal phrase for a very heavy burden. At a minimum, you should be prepared to present very strong evidence supporting your position, including potentially, testimony from your child’s pediatrician.

Theoretically, but for assistance only. A judge has a duty to make decisions, and shall not abdicate this duty to another professional.

Absolutely, unless the judge finds a compelling reason to restrict your access.

Yes. If parents cannot agree on parenting issues, they are required to attend mediation with a trained professional. While this may be intimidating or difficult, it is far superior to inviting a stranger into the family to make highly personal decisions about your children.

Only if you have sole legal decision making. If you have joint legal decision making, the court can hold you in contempt and even give your ex sole legal decision making about all issues. It is also likely that your health care provider will require a signed consent from both parents.

Likely not, but there are no clear answers yet. Each parent has the right to decide the day to day decisions for the child while the child is in their custody – unless there is a specific court order saying otherwise. Masking may very well fall within those day to day responsibilities.

Again, we cannot emphasize this enough. If you have a dispute with your co-parent, try to talk it out if that is possible. Judges are laser focused on your child’s best interests and expect that parents will be as well.

Read more about when judges have to become a “third parent” in our blog Just Who Is In Charge of the Little Ones.

Message from McCarthy Family Law​

McCarthy Family Law is a full service family law firm that services all family law issues. If you are going through a divorce or have questions about filing for divorce, we are here to assist you. Please call us at 520-623-0341 to explore your options. Turning Stress Into Solutions®.