One of the biggest challenges you might face after divorce is making crucial decisions about your child's welfare and healthcare with your former spouse. If both parents share legal custody of a child, they will both need to work together to not only make decisions about their children's education, but their healthcare as well. COVID-19 has brought these types of issues to the forefront for many families, specifically when it concerns child vaccination. Not only can making these types of decisions be stressful, but they may also be emotional and overwhelming — especially if both parents do not agree.
When most people hear the term child custody, they think of where the children will live and who will care for them on a daily basis. But it's important to understand that custody comes in two parts — physical custody and legal custody. Legal custody is what gives parents the right to decide things such as their children's vaccination status, whether for COVID-19, the flu, or any other vaccines. This type of custody can be sole, giving only one parent the right to make medical decisions. Or, it can be joint, meaning both parents share decision-making responsibilities.
When parents disagree on healthcare matters like a child vaccination, they should first look to their custody agreement. A well-drafted custody agreement should set forth terms regarding healthcare decision-making. However, most agreements do not address the controversial COVID-19 vaccine and whether it should be administered to the parties' children.
If both parents are amicable, they should have an open discussion about their concerns regarding the COVID-19 vaccine or any other vaccine that may be at issue. In some cases, a parent who does not wish for their child to be vaccinated may simply need more information about that particular vaccine. In other instances, one parent may not believe in any vaccine at all. Once both parents understand the other's position, they may be able to reach an agreement.
In the event that parents are unable to have a peaceful dialogue concerning healthcare or child vaccination issues, they might consider using the mediation process to resolve their disputes. During mediation, a neutral party can work with both parties to facilitate healthy communication and help the parents come to an agreement. If good faith attempts at mediation fail, it may be necessary for the parents to pursue litigation to resolve the matter in court.
When parents cannot reach a settlement concerning legal custody matters — such as those involving healthcare decisions — they should never act unilaterally. Rather, they may file a motion in court to have a judge determine the outcome. When a custody case goes before the court, the judge will always render a determination based on the "best interests of the child" standard.
In applying the "best interests" factors, a court might consider school requirements, the reasons a parent may be against vaccination, any health risks to the child, and expert medical opinions. However, it's important to understand that California's Vaccination Law does not provide an exemption based on personal beliefs. Parents are legally required to immunize their children against certain diseases in order for them to attend public or private school. Additionally, California recently became the first state to announce a COVID-19 vaccine requirement for attending school.
Significantly, the COVID-19 vaccine is still a developing issue in custody cases and family law as a whole. This means that there is little to no case law on the matter to guide judges in their rulings. Nevertheless, a judge may likely rule it is in the child's best interests to receive it, depending on the circumstances and absent a compelling medical reason.
To avoid future disputes concerning child vaccination and other medical decisions, it's vital for the parents to have a custody agreement in place that addresses these matters. While many custody agreements are open-ended regarding healthcare issues, they can outline specific details such as which doctors the children will see and under what circumstances a visit to the doctor is warranted. A custody agreement can also dictate which parent has final decision-making authority for healthcare matters if a dispute should arise.
Critically, a custody agreement is not legally enforceable unless it is ordered by the court.
If you are facing a child custody issue, it is best to have a skilled family law attorney by your side who can advise you regarding your legal rights and options. Providing experienced representation and knowledgeable counsel, The Law Offices of Rick D. Banks has been assisting clients throughout Fresno and the surrounding area with their divorce and family law matters for over 20 years. To schedule a no obligation consultation, call (559)222-4891.