When Divorced Parents Disagree About the COVID-19 Vaccine 

There is a lot of disagreement about vaccinations for children and the argument between parents with differing views on this subject is not a new one.  Illinois family law attorneys representing parents in this type of disagreement have worked throughout the years to avoid the problem in its entirety by addressing the issue of vaccination in the parenting agreement, now called an Allocation Judgment.  A prior agreement on how to handle vaccinations will give clarity as parents deal with the COVID-19 vaccine.

COVID-19 Vaccine Questions from Divorced Parents

There are a number of questions and co-parenting issues surrounding the COVID-19 vaccine. Here are five of the most frequently asked questions we are seeing in our Chicago family law practice:

1. What If the Other Parent Will Not Get the COVID-19 Vaccine?

   We just saw a judge in Cook County strip a mother of her parenting time because she had not received the COVID-19 vaccine.  The parents were before the court on a child support matter and the judge asked the mother if she had been vaccinated.  When she replied that she had not, the court on its own volition ordered that custody be transferred to the father.  In that particular case, I believe that the judge’s ruling will be overturned because of what we call “subject matter jurisdiction.”  There was no motion pending concerning the child’s best interests, they were in court about child support.  But the father’s attorney surely realizes this and is likely filing a motion as we speak to modify custody.  Once the appellate court reverses the trial court’s ruling, the trial judge will have the opportunity to rule that it is in the child’s best interest to have a vaccinated parent.  If the mother still refuses to vaccinate, she will likely lose custody of her child.

   I am surprised that there have not been more motions filed in court about one parent’s refusal to vaccinate.  I personally have had many questions posed to me concerning one parent’s actions and refusal to wear masks and social distance.  Early in 2021, since children seemed to be affected very little by COVID-19, I advised parents that I did not think the judge would do anything about a parent’s refusal to social distance or wear a mask themselves.  But now the COVID-19 vaccine is here and available and a parent’s refusal to vaccinate is leading to a different result.

2. Is There a Way to Ensure My Child Will Be Vaccinated?

   If you don’t currently have a parenting agreement with the other parent, the drafting of this agreement will be very important when considering the COVID-19 vaccine for your child.  Typically this provision will fall under medical decisions for the child and it is common that both parents have equal decision making when it comes to the child’s medical needs.  But spelling out exactly how each parent feels about vaccinations can be helpful to avoid future litigation.  If you have the agreement written that vaccinations are considered “routine” decisions, then you would not have a violation of the agreement by getting your child vaccinated.  You rarely have to make a joint decision about routine matters, you are allowed to do them unilaterally.  But it is all in the drafting of the agreement.  Major decisions will require the consent of the other parent, routine decisions do not.

3. When the Other Parent Will Not Agree to Vaccinate our Child, What Can I Do?

   On March 6, 2021, I discussed this exact problem regarding the COVID-19 vaccine. See https://www.instagram.com/tv/CMGHo1opjEn/.  I have not seen a parent win the refusal to vaccinate their child argument in court.  Everything before the court is based on the “best interests of the child” and in my opinion, there is very little disagreement amongst the justices on this issue.  They always want the child vaccinated.  Going down this slippery slope with the newest vaccine is not going to be treated any differently.  The parents can vaccinate now, and once the children are allowed to be vaccinated, this argument will come front and center before the courts.  I would be surprised if the justices decide that the parent refusing to vaccinate their child prevails.  I do not think a change of custody will necessarily ensue, but I do believe the justices will decide that the parent wanting the vaccination will be allowed to vaccinate their child.  Even against the wishes of the other parent.

4. What If I Already Have a Parenting Agreement In Place And I Need the Other Parent’s Permission To Vaccine and They Refuse?

   If you already have a parenting agreement in place, and you need the other parent’s agreement to vaccinate, the only thing you can do is file a motion to modify that provision in your agreement.  Everything about the children will be decided in the best interests of the child, so if you can convince the court that the vaccine is in your child’s best interest, then the judge will likely modify your agreement.

5. I Have Heard of People Talking About Parens Patriae.” What Is That?

   This is a doctrine that grants the state the right to protect people who are not able to act on their behalf.  It is a very old doctrine, but one I still see argued in court.  Once parents put their child in front of the judge, the judge is going to do what the judge feels is in the child’s best interest.  Sometimes over the objections of the parents.

   But this is an issue that has very little middle ground.  It is not like deciding if your pick-up time will be 9:00 AM or 10:00 AM.  You and the other parent are either in favor or vaccination or you are not.  It is hard to mediate that issue since both parents will have very strong feelings on the subject and it is hard to reach a compromise on the issue.  If you cannot agree and it goes before the Court, I think the judge will rely on what the pediatrician has to say on the subject.  If the pediatrician is stating that there is no reason for the child not to receive the COVID-19 vaccine, then I believe the judge will rule in that manner and require the child to be vaccinated.

Anderson Boback & Marshall is here to provide trusted legal advice on any family law, divorce or child custody matters including co-parenting disputes involving the COVID-19 vaccine.  Contact us today to schedule a confidential consultation and speak with a Chicago child custody attorney.