As Chicago child custody lawyers, we are getting a lot of these questions lately about being able to vaccinate a child without permission from the other parent. There is no easy answer to this question. Whether you need permission from your ex to vaccinate your child will be found in your parenting order.
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Violating a Court Order When Your Vaccinate Without Permission?
If you need a joint decision for medical care, and you vaccinate without permission, you could subject yourself to contempt in court for violating a court order.
You might have already agreed with your ex that medical decisions will be made jointly. Or that one or the other has the sole decision making regarding medical decisions. Even if your ex has sole decision making for medical, if you believe that your ex isn’t acting in your child’s best interest, you can bring the matter to the court.
Taking a Vaccination Case to Court
I recently had my first case on the subject of whether a father could vaccinate his child when the mother was against it. In Jim’s case, he’d researched all the data and was absolutely convinced that not vaccinating his child would lead to more harm than good.
I had my case law research ready in addition to his research. I had an expert prepared to take the stand and I was prepared to argue the case Troxel v. Granville. (For those of you who want to read the full court’s opinion, just give me a call, but it is at 530 U.S. 57 (2000). This case gives parents a constitutional right to the care, custody, and control over their children. This is a fundamental right and in a family law court, we presume that parents will act in their child’s best interest.
But what do you do when both parents have that same fundamental right?
Each parent is presumed to be acting in their child’s best interest and there isn’t much middle ground on the subject. You cannot be “kind of vaccinated.” It is a lot like being pregnant. You either are or you aren’t.
There isn’t much middle ground.
Should Courts Allow a Child to be Vaccinated or Not?
One way to convince the court that your child should be vaccinated is under the “serious endangerment” statute-750 ILCS 5/603.10-Restriction of parental responsibilities. Pursuant to this statute, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral or physical health, or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.
Serious Endangerment to the Child
Because each parent is presumed to be acting in their child’s best interest, in order to take away a parent’s decision making on any one topic, you have to demonstrate that the activity or event that a parent wants to do is a “serious endangerment” to that child. This is a high burden.
We see a lot of parenting disagreements and when one parent wants to impose their will on the other parent, it is difficult. I’ve had the “health food” parent against the “junk food” parent, or the parent who doesn’t have a regular bed schedule vs. the parent who strictly makes the child go to bed at 8:00 p.m. Those issues seem easy in light of the medical decision to vaccinate or not to vaccinate.
Many cases fall under this umbrella of serious endangerment which is easy for the court to determine. Sexual abuse of a minor easy falls under this statute taking away a parent’s right to see or make decisions for their child. A case where a custodial parent suffers from a mental illness and refuses medication to correct their behavior has also fallen into this category. I was prepared to argue this statute and the case was quickly decided.
Serious Endangerment Not to Vaccinate?
In family court, is that if there is even a suggestion that a parent’s decision could negatively impact a minor’s health, the judge will most likely err on the side of caution. My judge found that mom’s decision not to vaccinate wasn’t the safest choice and prohibited her from standing in the way of the vaccination. The court found that it would be a serious endangerment not to vaccinate.
Seek Advice from an Experienced Family Law Attorney
At Anderson & Boback, we’re passionate about solving complex family law issues for our clients and their families in Chicago and the greater Chicagoland area. Contact us today for a confidential consultation when you have questions or concerns about child custody matters including whether you can vaccinate your child without permission from your ex.