When Parents with Shared Legal Custody Can’t Agree on Vaccination, a Judge Will Decide

In the state of Pennsylvania, the vast majority of divorced couples who are parents end up with shared legal custody of their children. No matter how tough the initial custody battle may have been or how much of a tussle child support was, this status tends to evolve into a non-issue, as both parents tend to share values and concerns when it comes to big issues about their kids. But as with nearly everything else in our lives in the last few years, COVID-19 has added a new layer of complexity. Family lawyers and courts are seeing a dramatic increase in the number of divorced couples arguing over whether to vaccinate their children.

Health issues are one of the areas that shared legal custody addresses, and the fact that one parent has the lion’s share of custody time does not automatically entitle them to overrule the other parent’s concerns. A Pennsylvania couple that could not come to terms on COVID vaccination for their kids was recently profiled on PBS station WHYY, and is representative of what many courts in Pennsylvania are seeing.

Though both parents were vaccinated themselves and generally agree on other shared custody questions about religion and school, the father balked when it came to vaccinating their 9- and 11-year-old children. He was not anti-vaccination, but insisted that children did not face the same risks that adults do and that there was too great a risk of side effects that came with injecting the kids with what he considered an untested vaccine. The couple had similarly argued over masks earlier in the pandemic, as he felt they were ineffective and she disagreed.

While the mother surrendered on the issue of masking, when it came to getting their children vaccinated she felt that it was necessary, but new that legally she could not simply take it upon herself to get it done without her ex-husband’s asset or a court order. Doing so would have been a violation of the custody agreement, so the two sought help from a mediator, who refused to intervene. That left the children unvaccinated, shut out of many social events and sent home to quarantine every time there was a COVID case in their classrooms because of their unprotected status.

When the couple took their disagreement to a judge they were not alone. Pennsylvania courts have seen hundreds of these cases since the vaccines for children were approved. In some cases judges have simply decided on the matter of the COVID vaccination, but on others an extreme view voiced by one parent has led judges to modify the custody agreement and give authority on all health issues to the other.

Though there is no single answer to how these disputes are resolved, in most cases the judge relies upon the opinion of the child’s healthcare provider. Court watchers have noted that decisions are often effected by whether a dissenting parent expresses political views in the course of the discussion or has posted political statements against vaccination on social media. The courts want parents to be most concerned about their child’s health and wellbeing, and parents who are against vaccination need to provide evidence in support of their position.

In the case of the profiled couple, the children’s health provider refused to send a letter recommending vaccination because the children had no health issues. Still, they indicated that they adhere to CDC recommendations that healthy children be vaccinated. The father submitted articles from doctors who had voiced opinions against vaccines, and pointed out that his ex-wife had previously taken a stand against the standard childhood vaccination schedule, and that he’d had taken the kids for standard vaccinations once the two had separated.

In the end, the judge ruled that the mother could have the children vaccinated against COVID and made no modifications to the shared legal custody agreement. The issue cost both parents thousands of dollars to resolve, and reintroduced tensions in the family.

Disagreements surrounding children are the most emotionally fraught issues that divorced and divorcing parents face. For assistance in addressing these issues, contact our experienced Pennsylvania divorce attorneys today.