How Do You Handle Vaccine -- and Other Health Decisions -- as a Divorced Couple?

Over the past year, there has been a strong push to develop, approve, and distribute the COVID-19 vaccine nationwide. But there are many who are opposed to it for religious, philosophical, or political reasons. Now that the vaccine has been approved for children, divorced couples will need to figure out how to handle child vaccination decisions -- and other health decisions -- as co-parents.

Child COVID Vaccine Approved for Ages 5 - 11

On November 2, 2021, the CDC gave the Pfizer BioNTech Covid-19 vaccine formal approval for use in children ages 5 - 11. Within the first week, approximately 900,000 children nationwide received their first dose, with another 700,000 awaiting their appointments. Teens 12 to 15 have been able to receive the vaccine since May 2021.

However, one survey by KFF COVID-19 Vaccine Monitor, published on October 28, 2021, revealed that nearly three quarters of parents expressed hesitance or even refused to vaccinate their children and teens. Of those surveyed, 53% worried that their children may be required to be vaccinated over their objections to go to school. Parents also worried that they would need to miss work to get their kids vaccinated, have to pay out of pocket, or would be unable to find or travel to a trusted vaccination location (like their children’s pediatrician).

Is the Child Covid Vaccination Safe?

Any medication or vaccination comes with potential risks and side effects. If you have any question about whether the Pfizer vaccine is safe for your child, you should speak to your pediatrician about their specific medical history, including any preexisting conditions, and the risks associated with the vaccine.

Initial studies suggest that healthy children experience similar side effects as adults, including short-term fatigue, headache, fever and chills. However, perhaps because the child’s dose is approximately one third the medication as the adult dose, the percentage of children experiencing these symptoms are significantly lower.

Who Can Make Healthcare Decisions for Kids After Divorce?

Still, parents are divided over whether to get their children vaccinated right away, wait and see if there are side effects, or simply refuse the vaccine altogether. When parents are married, the law assumes that spouses will work through these issues together with the help of their children’s pediatrician and doctors, their religious leaders, and other professionals, to come to a decision that is best for their child’s health and welfare.

But what about after the parents have separated? Who can make healthcare decisions for kids after divorce?

Whether to vaccinate your children, or not, is a legal custody decision. Legal custody defines whether one parent has the authority to make major life decisions for a child, or if the consent of both parties is required. Legal custody includes:

• Medical decisions
• Choices over school and education
• Religious participation and upbringing

Types of Legal Custody in Maryland

When parents get divorced, the Maryland family court judge will assign:

• Sole legal custody: one parent has decision-making authority, without needing consent of the other parent
• Joint legal custody: co-parents must work together to reach consensus on child-related decisions
• Joint legal custody, with tie-breaking power: one parent has the final say on decisions in the event a consensus cannot be reached, so long as the parties have attempted joint decision making.

Parents can also agree on who will have decision-making authority and include that information in their Parenting Plan.

If you and your co-parent have different perspectives on whether your child should receive the COVID-19 vaccine, you should refer back to that Parenting Plan to see who has the final say. If you share joint legal custody (as many families do), it will be up to you and your co-parent to communicate your concerns, educate yourselves about the risks and benefits of the vaccine, and make a decision that is in your child’s best interests.

Who Can Make Healthcare Decisions for Kids When Parents Never Married?

When co-parents were never married, who can make healthcare decisions depends on the paperwork parents signed when the child was born, and whether the family has gone to court for custody since. When a child is born to an unmarried mother, only the mother is automatically assumed to be the child’s legal parent. But the father’s rights can be established easily and quickly if both parents sign an affidavit of parentage. Often, this happens right in the hospital.

Once the affidavit of parentage is filed with the state, the mother retains initial custody, giving her the final say on medical decisions. But the father or second parent named on that affidavit has the right to seek custody of the child at any time without any extra steps. Filing that complaint is one way that unmarried parents can resolve a disagreement over child vaccination or other medical decisions.

Factors Maryland Courts Consider in Awarding Legal Custody

Once a divorce or complaint for custody is filed, Maryland law doesn’t give preference to either parent, and instead focuses on the best interests of the child. Also, your judge isn’t required to award joint legal custody, but he or she will consider it in most cases. If the issue of custody goes to trial, then the judge will consider the proposed legal and physical custody arrangements suggested by each parent, and enter an order based on the following factors:

• Ability of the parents to communicate and reach shared decisions affecting the child’s welfare.
• Willingness of parents to share custody
• Fitness of parents
• Relationship between the child and each parent
• Preference of the child
• Risk of disruption of the child’s social and school life
• How far apart the parents live (primarily as to physical custody)
• Demands of parental employment (this can play into legal custody if one parent has specialized knowledge about a legal custody issue, such as working in healthcare)
• Age and number of children
• Sincerity of the parents’ request
• Financial status of the parents
• Impact on state and federal assistance

This isn’t an exhaustive list. You and your family law attorney can make arguments that other factors affect your child’s best interests. However, if you are requesting joint legal custody, be certain that you and your child’s co-parent are willing and able to work together to make tough decisions, like whether to give your child the COVID-19 vaccine.

How MD Courts Treat Religious Objections to Vaccinations

The news is full of stories about workers and parents who object to the COVID vaccinations. Many of these objections are religious. For example, a person’s faith may not allow them to receive injections, or may oppose the use of fetal material in manufacturing or testing the vaccine. While there aren’t many cases yet about how the courts will address the COVID vaccine specifically, a look at past cases involving other vaccines and healthcare decisions can help understand how a Maryland family court judge may resolve a dispute when divorced parents disagree on vaccination.

The Maryland courts will consider a parent’s religious beliefs in deciding whether a medical procedure, including vaccination, is in the best interests of the child. However, the court will also try to determine if that parent’s claimed religious belief is sincere, or is masking a personal desire for their child’s care. For example, if one parent is objecting to giving their child the COVID vaccine primarily because they don’t want the other parent to make decisions for the child anymore, the courts may not give as much weight to their religious objection.

Even if the parent’s religious belief is sincere, it may not be enough to convince the court not to require vaccinations. In 2019, a child was immunized while in state care as a result of alleged parental abuse. The mother raised a religious objection to vaccination, but the Maryland Court of Special Appeals (second only to the Maryland Supreme Court) ruled that the mother’s religious beliefs could not be given so much respect that it posed significant life or health risks to the child.

Out-of-Court Options for When Parents Disagree on Child Vaccination

When parents disagree about healthcare decisions, it is often a time-sensitive and emotional issue. These aren’t always the best kinds of disputes to take to court. Especially in the pandemic era, court dockets can be slow and it can take months for a motion to be resolved. In the meantime, children continue to be exposed to the virus, or could face additional health complications as a result of delayed treatment. While parents absolutely have the right to file a motion in court, other alternative dispute resolution strategies may be a better fit when parents disagree over vaccines or their child’s health.

Collaborative Co-Parenting Strategies that Apply to Child Vaccination Disagreements

Collaborative (or the collaborative process) is an alternative to traditional litigation that helps former spouses and co-parents negotiate disputes without getting the court involved (except for to grant the absolute divorce). Collaborative allows parents to work with professionals focused on helping them resolve their disputes privately, with dignity and respect toward one another, and their child.

The collaborative process is well suited to healthcare disputes because it puts parents in contact with professionals like divorce coaches, therapists, and doctors, in addition to collaborative law attorneys, who can give parents real answers to their questions about the vaccine, and help them sort through all the information and opinions available online and in the news. Armed with the advice of these professionals, collaborative law makes space for parents to come together and decide what is the best choice for their family, and their child’s health and wellbeing.

Mediation to Resolve Healthcare Disputes Between Parents

Even if collaborative law is not for you, you can still resolve healthcare disputes without going to court by hiring a private mediator. A professionally-trained mediator can help parents communicate their concerns, work through their issues and objections, and ultimately negotiate a resolution that is in the child’s best interest. Mediation is often the fastest option to resolve co-parenting disputes, which makes it an especially useful tool if a healthcare decision needs to be made quickly. Mediation is also private, which protects information about your child’s health or disability from becoming part of the public record.

However, unlike in collaborative law, it will be up to the parents to gather information about the child COVID vaccine and how it may affect their child’s existing health conditions on their own. The mediator is simply a facilitator for the parents’ conversation, and generally will not provide additional information about the issues up for discussion.

Get Help Resolving Co-Parenting Healthcare Disputes

At the Law Office of Shelly M. Ingram, our Maryland child custody lawyers can help you understand your family’s legal custody situation, and make decisions about the COVID-19 vaccine that put your children first. We also offer collaborative law options and neutral mediation services to help parents resolve their legal custody disputes quicker and have more control over their families’ future. We want to help you make the best decisions for your children’s wellbeing. Contact us today to schedule a consultation with an attorney, or set up a mediation.