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January 25, 2021 Custody

Vaccination Disputes in Child Custody Matters

Neveen Kurtom, Esq.

The COVID-19 pandemic has caused a rippling effect in the legal system in how the courts handle family law cases.  Courts across the United States have to address issues related to custody, visitation, child support and enforcement of prior orders as a result of the pandemic.  With the emergence of the COVID-19 vaccine, Courts may be forced to address the issue of vaccinations in ways that never have been addressed before.  While no U.S. Court has issued decisional law on the COVID-19 vaccine specifically, courts have addressed vaccinations generally.  

With the emergence of the COVID-19 vaccine, Courts may be forced to address the issue of vaccinations in ways that never have been addressed before.

With the emergence of the COVID-19 vaccine, Courts may be forced to address the issue of vaccinations in ways that never have been addressed before.

Gustavo Fring via Pexels

In child custody cases, the trial court addresses both physical and legal custody.  Legal custody carries with it, among other things, the right of both parents to make medical decisions for their children.  Both parents are presumed to be fit parents that are capable of making joint medical decisions together.  What happens when one parent disagrees with the other with respect to vaccinating their child?  Who gets to make that decision and what does the trial court take into consideration in making such a decision?  A Maryland trial court recently addressed whether a judge can explicitly order one parent to vaccinate a child when the parent did not want to.  In said case, the parents were unmarried and have one minor child who was four years old at the time of the trial.  Both parents presented scientific, religious, and moral evidence to support their position.  In making its decision, the court relied on Taylor v. Taylor, 306 Md. 290 (1986).  The Taylor court set out major factors to assist trial courts in determining whether joint custody is appropriate.  These factors include:  

  1. Capacity of Parents to Communicate and to Reach Shared Decisions Affecting the Child’s Welfare
  2. Willingness of Parents to Share Custody
  3. Fitness of Parents
  4. Relationship Established Between the Child and Each Parent
  5. Preference of the Child
  6. Potential Disruption of Child’s Social and School Life
  7. Geographic Proximity of Parental Homes
  8. Demands of Parental Employment
  9. Age and Number of Children
  10. Sincerity of Parents’ Request
  11. Financial Status of the Parents
  12. Benefit to Parents

The trial court made it abundantly clear that it will not make a decision as to whether the minor child should be vaccinated and relied on the factors outlined in Taylor as to whether the parties can have joint legal custody and whether awarding tie-breaking authority is necessary.  Ultimately, the court decided that the parties shall have joint legal custody and that Father shall have medical tie-breaking authority.  In doing so, the court made an implicit decision as to which parent shall have the ultimate medical tie-breaking authority with respect to vaccinating the minor child. 

Similar to the Maryland case above, other states have awarded either sole legal custody or joint legal custody with tie-breaking authority to the pro-vaccination parent.  For example, a Missouri court ruled “that there was sufficient evidence from which the court could find that Mother and Father could not reasonably be expected to reach consensus on medical decisions for the children. They had vastly different beliefs regarding appropriate medical treatment.” Gammon v. Gammon, 529 S.W.3d 350, 354 (Mo.App. 2017).   As such, the Court ruled that Father be awarded sole medical decision-making.  Similarly, in Tennessee, the appellate court affirmed the trial court’s decision awarding the pro-vaccination Mother sole decision-making.  Pankratz v. Pankratz, M2017-00098-COA-R3-CV (Tenn.App. 2017).  In Connecticut, a trial court awarded the Father of two children final authority to make health care decisions for them because the Mother has religious objections to their being vaccinated.  Archer v. Cassel2015 Conn. Super. LEXIS 515 (CT Super. Ct., March 10, 2015).  More recently in 2020, the Michigan Courts of Appeals ruled that vaccinations are in the best interest of the minor child and affirmed the trial court’s order requiring that the parties’ child be vaccinated by a pediatrician and for the parties to select a new, mutually agreeable pediatrician for the child.  Matheson v Schmitt (Docket No. 347022).  While this is not an exhaustive list of all the litigated cases involving vaccinations from across the country, it is clear that an anti-vaccination parent has a huge burden proving to a court of law why it is not in the best interest of the minor child to be vaccinated. 

It is yet to be seen how the courts will handle disputes between parents administering the COVID-19 vaccine to their children.  The courts will have to weigh the best interest of the minor child with the safety and efficacy of the COVID-19 vaccine.  With so many unknown factors involving the COVID-19 vaccine, it is likely we will see a rise in cases that are filed to address this very issue.  

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Neveen Kurtom

Esq., Columbia, MD

Law Office of Neveen H. Kurtom, LLC