After years of distress about the pandemic, masks, travel, and virtual school, parents are being faced with a new dilemma: whether and when to vaccinate their children against COVID-19. These emotional disputes are now being played out in the family law courts.
The decision to administer vaccines to children has been a general source of debate between parents for ages. However, there is scarce precedent in the higher courts to provide much guidance on the issue today as the coronavirus pandemic has forced this issue into the spotlight. Some parents are excited about the availability of a vaccine against COVID-19 for their children, while others carry concern about the safety of the new vaccine.
So what do parents do if they disagree about whether and when to give their children the COVID-19 vaccine? If they are unmarried, divorced or separated, they must first look at their existing court orders for child custody.
All Texas parenting plans contain specific terms outlining how conservators can make decisions for their children, including medical treatment. A “conservator” is a person with legal rights toward a child, like parents. Specifically, Chapter 153 of the Texas Family Code allocates a specific right and duty to conservators relating to medical treatment of a child: First, a right to make decisions involving invasive medical treatment. Second, a duty to provide non-invasive medical treatment
It is important to read the language of the custody order carefully. These rights can be allocated in different ways: exclusively, independently, or by agreement with the other conservator. This variety between orders especially applies with decisions involving invasive medical procedures. This makes sense given the significance of such choices. On the other hand, most Texas child custody orders by default provide both parents the independent duty to provide non-invasive medical treatment to children. This parental duty is rarely modified without good cause. After all, it would be neglectful for a conservator or parent to fail to provide a child with basic medical treatment.
The battleground question, then, is whether or not a vaccine is an “invasive procedure” to trigger how the decision can be made under the custody order. This specific issue is not clear cut in the law and individual Courts may treat this question differently. Using the definition of an “invasive procedure” from the Texas Health and Safety Code section 85.202(3), vaccines are not an invasive procedure because they do not involve things like surgery or an operating or delivery room. Accordingly, there have been rulings by several family court judges that vaccinations were not an invasive procedure. But the debate continues to pay out between parents. There is no appellate case law authority one way or another at the time of publishing this article and the answer may still vary between cases.
If parents do not have an underlying court order for child custody, then it should be assumed that either parent can independently administer a vaccine to the child, absent special circumstances.
It is important that parents also consult with their child’s pediatrician and trusted medical professionals to decide what is best for their unique situation. A neutral professional like this may help the parents reach a consensus on whether and when to administer the COVID-19 vaccine on their child. But, if a parent is preparing to go to court over this issue, then it may help for that person to have records establishing that he or she has a history of making medical decisions for the child. It could discredit a parent if they have always let the other parent handle medical decisions without question, up until the COVID-19 vaccine. Other resources that will help guide the court are the policies in effect in the child’s school and extracurricular activities. For example, some schools may have different policies for vaccinated vs. unvaccinated children that the court should be aware of when making its decision. Further, the Centers for Disease Control (CDC) and American Academy of Pediatrics (AAP), are national institutes which employ a vast number of medical professionals and researchers to help set national health policy. The information on the CDC and AAP websites is current and can be a helpful resource to consult when making decisions about the COVID vaccine.
The COVID-19 pandemic has rewritten the rules of parenting and relationships. The question of administering vaccines is yet another polarizing decision that parents must make as a result of the pandemic. It is the only latest battleground issue that parents must navigate in child custody disputes, which will hopefully yield more guidance from the courts moving forward.
Source: Lindsey Obenhaus, Goranson Bain Ausley