Coparenting Disagreements Over COVID Vaccines Are On The Rise––Family Law Attorneys Weigh In

On October 7, Pfizer-BioNTech asked the FDA to authorize emergency use of their COVID-19 vaccine for kids ages 5 to 11. Potentially more than 28 million kids could be eligible for vaccination by Halloween. Many parents (myself included) cheered! Finally, we could stop worrying about a disease that still presents more questions than answers. Finally, the risk-benefit analysis we’ve been engaging in since March 2020 would look easier.

But not all parents cheered. Not all parents want to vaccinate their children against COVID (which is a topic for an entirely different article.)

In most situations, parents get to make that choice. They make their children’s medical decisions and that’s that. Unless, of course, parents from the cheering group are co-parenting with parents from the other group. Then what? Do the children get vaccinated or do they not?

“As soon as the vaccine is available for toddlers, we expect to see a tug-of-war between many parents over whether or not to vaccinate their children, because parents tend to fight more about decisions involving smaller kids,” attorney Holly Davis of Kirker Davis LLP wrote in an email.

Family law attorneys are already seeing the rise. California family law attorney Brent Kaspar wrote that “one in every five cases hitting his desk these days includes a disagreement between parents over giving the Covid-19 vaccine to their children.”

Scary Mommy spoke with Davis to discuss what happens when co-parents disagree about vaccinating their young children and what folks can start doing now to prepare.

If Co-parents Can’t Agree, Judges Decide

Divorced parents have been co-parenting through a pandemic for nearly two years. Families have had to navigate a variety of issues related to quarantine and risk tolerance. By now, most people know whether to expect a battle on this latest front. Now that the vaccines for kids are on the horizon, co-parents who expect a battle should try to reach an agreement about whether to vaccinate their child against COVID-19 between themselves. If they cannot, then the courts will get involved.

Davis expects that courts will treat the COVID-19 vaccine in the same way they treat any other invasive medical procedure, despite some of the uncertainty and newness surrounding these vaccines.

Meaning, judges will follow CDC recommendations and guidelines.

In an interview with the Chicago Sun-Times, Chantelle Porter, a family law attorney at A. Traub & Associates, confirmed Davis’ belief. She said, “The trend of the court seems to be that they are looking to see which parent has the responsibility for medical decisions. If they have joint decision-making responsibilities, they seem to be leaning toward science, for lack of a better word. Each case is specific, but they are looking at best practices, science and whatever the recognized authorities like the American Academy of Pediatrics states.”

For parents who are pro-vaccination, this is encouraging. They need only point to the overwhelming data, the peer reviewed studies, and the extensive mechanisms and systems in place that have allowed the vaccines to receive FDA emergency use approval and distribution to the entire world. In the majority of cases, courts will likely decide to vaccinate.

Anti-Vaccine Parents Will Have An Uphill Battle

Co-parents who are anti-vaccine for their children will have an uphill battle. They will not be able to go to court and say they don’t agree to the vaccine because they don’t trust it. Pointing to a YouTube video as evidence won’t work either. (As an aside—phew!) By and large, arguments made without science will be ignored.

However, in some cases, anti-vax parents may be able to make a successful argument. Davis says they will need to come to court prepared with family specific information about allergies or reasons why their children do not fall into the category of children who were studied.

Geography could also play a role in what an individual judge decides. Unfortunately, the vaccine is politicized. Davis believes that judges in rural areas who run on political parties may make decisions that track that political party’s beliefs.

Even then, Davis believes the data will create an uphill battle for anti-vax parents.

Start Preparing Now

Co-parents who foresee a disagreement with their former partner can begin preparing now. According to Davis there’s internal and external work for a co-parent to do.

First, the internal work. Davis suggests considering potential compromises. She urges parents to pick their battles. Determine whether this is the most important issue, and whether there’s a scenario in which they’d be willing to delay the issue or drop it entirely. Essentially: what, if any, is your compromise situation?

Second, the external work. Davis encourages parents to attempt to compromise without lawyers or judges. Her advice—don’t come for battle. “Approach the discussion in a way that gives you the best possible outcome you could receive. That means maybe tamping down…battles elsewhere.”

The “key to this is you can’t just go in to a battle with your ex expecting them to lay down and give you a 100 percent win. Too many feelings are involved, so you truly have to compromise somehow,” she says.

The worst thing to do would be to unilaterally make a choice. Don’t head into a CVS and get your eight-year-old vaccinated. It might feel good in the short term. But, if your custody agreement requires you to make medical decisions together, violating that agreement will cause real problems down the line, including potential punishment by the court.

Ultimately, the best thing co-parents who disagree about the COVID vaccine for their child can do is communicate. Davis urges folks to avoid having a stranger (a judge) who has 20 other cases and to whom you’ll be nothing but a number, make medical choices for your child. Of course the law is always an option for parents who simply cannot agree. But for those who can, she urges them to do the work, make the compromises in other less priority areas, and “build the muscles of negotiation and compromise,” which will serve them now and in disagreements to come.