Family law attorneys and courts across the country have been working hard to help families navigate these ever-uncertain times. In particular, the vaccination of children poses unique legal challenges. What happens when two parents with joint legal custody disagree on whether a child should receive the COVID-19 vaccination? To best answer that question, we will explore several factors that Minnesota courts may look to in determining what is in the child’s best interest.

PARENTAL RIGHTS, CUSTODY AND MEDICAL DECISION-MAKING OVERVIEW

Before jumping into COVID-19-specific-issues, we first need to discuss a parent’s legal rights as well as the extent of a court’s ability to intervene with respect to those rights. The most fundamental parental rights originate from the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. This clause states that no citizen of the United States shall be deprived, by the government, of “life, liberty, or property without due process of law.” The courts have interpreted this clause to guarantee the right of parents to direct the care, custody, and control of their minor children—including making medical decisions for their children.

So, what happens when one parent feels strongly that the child should be vaccinated, and the other parent strongly disagrees?

THE COVID-19 VACCINE: HOW MINNESOTA COURTS MAY ANALYZE THIS ISSUE

When it comes to dealing with issues related to the COVID-19 global pandemic, we are navigating somewhat uncharted waters. The court’s goal is to make decisions that are in the best interest of a minor child. When two parents are seeking the court’s assistance on whether to immunize the child, they’re essentially asking the court to determine which parent shall be permitted to make that decision. There are various facts and factors that may be important in that analysis:

• Prior Court Orders – First off, courts will likely look to any prior orders in the case.  Which parent has medical decision-making authority? By what process have the parents agreed to resolve disputes involving medical decisions for the child? If the orders are unclear on this issue (the parents share joint legal custody, or one parent seeks an order to prohibit or compel the vaccination) the court may likely engage in a more rigorous evaluation. 

• Current Recommendations From Federal, State, and Private Medical Experts and Authorities – In order to determine whether any vaccine for COVID-19 is safe for children, the courts may turn to the recommendations of the Center for Disease Control and Minnesota Department of Health. Such an approach aligns with the court’s traditional reliance on the guidance and information of relevant, neutral medical authorities. Courts may also rely on the guidance of private organizations (such as the American Academy of Pediatrics). Additionally at present, only one Covid-19 vaccine is available for those under eighteen and it is only approved for those aged sixteen and older. It may be a number of months until pediatric vaccines for Covid-19 are available.

• Recommendations of the Treating Physicians – There are a significant number of unknowns regarding the long-term effects of COVID (and the vaccine) on children.  Many parenting orders look to the guidance of a child’s physician when the parents cannot agree on a course of treatment.  The opinion and testimony of the child’s treating medical provider may thus prove very important in these situations.

• Public Policy and Practical Considerations – Federal and state medical experts may direct public policy as it relates to the COVID-19 vaccine. One possible example is the theory of herd immunity or critical mass threshold for herd immunity in society at large. Minnesota courts may also consider whether the children and/or parents or other family members are practically affected by a decision not to vaccinate. For example, certain businesses and employers, including airlines, restaurants, and publicly-funded services, may require proof of vaccination to use their services. Minnesota public schools may also make vaccination mandatory. 

• A Parent’s Reason for Objecting to the COVID-19 Vaccine – A parent’s reason for objecting to the administration of the vaccine may be important in a court’s analysis. Courts may view some parental objections as legitimate, such as religious objections, objections to the contents of vaccines (and/or possible side effects), philosophical concerns, or preference for holistic or organic medicine. 

• Past Practices and Circumstances of The Family – Finally, the past practices of the family as it relates to vaccination and decision-making may be important. For children going through a divorce or custody dispute, promoting some degree of continuity and stability is frequently to their benefit. When faced with a dispute, courts may be less inclined to deviate from the past practices of the family. 

It is important to note that all COVID-19-related vaccination disputes in the divorce and child custody space will be unique and fact-dependent, and the list of factors above is not intended to be a comprehensive list. Moreover, each of the factors identified above may be given more or less weight based on the particular circumstances of the case.  It will be important to have this discussion with your child’s parent on this issue long before the vaccine does become available, especially if there is a dispute and court involvement may be necessary.  

If you or your family have questions about the vaccination issue, please contact Kelly Eull.

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Kelly Eull is an attorney in the firm of Henningson & Snoxell, Ltd. located in Maple Grove, Minnesota. She has been practicing law for over a decade and concentrates her practice in family law. Kelly has handled numerous family law matters involving dissolution of marriage, paternity, custody and child support.