Who Gets to Decide if a Child Can be Vaccinated?

Making important medical decisions is a common topic of disagreement in custody cases. Most parents share legal custody of their children, which means they must agree on decisions on behalf of the child, including, but not limited to medical, religious and educational decisions.  Medical decisions like cleaning out a run of the mill cut or scrape and applying first aid likely do not rise to a major medical decision, but the issue of whether a child should undergo surgery does. The latest medical decision parents are facing is whether to get a child vaccinated against COVID-19. Based on the most recent scientific information being distributed by the Centers for Disease Control and the various pharmaceutical companies manufacturing the vaccines, it is predicted that by fall 2021, all children ages 5 to 11 will be eligible to receive the COVID-19 vaccine. The intersection of science and custody will provide the perfect storm for custody litigation in this area. When parents are separated or divorced and do not agree on whether their child should receive the vaccine, who gets to make the final decision? Unfortunately, if they cannot agree, the courts are going to make that decision for them.

With respect to the recommended child vaccines, the overwhelming scientific evidence supports a finding that vaccination of children is in their best interests, unless the child’s medical condition contraindicates vaccination. The reports generated after public-agency research and investigation establish that the benefits associated with vaccination far outweigh any dangers. The U.S. Department of Health and Human Services and the Centers for Disease Control advise that vaccine side effects are, for the most part, minor and caution that a decision not to immunize a child could put the child and others who come into contact with the child at risk of contracting a potentially dangerous disease. Do these same principles apply to the COVID vaccines? The scientific literature and studies show that these vaccines are effective in preventing serious COVID related illness, including hospitalizations and death, and any side effects as a result of the vaccine generally subside in 24 to 48 hours. Further, the more people, including children, who are vaccinated will further the goal of herd immunity and the hope of eradicating the virus.