The pandemic has a host of parenting pitfalls. Should custody be limited to those who don’t work in high-risk professions? What’s best for the kids when one parent refuses to wear a mask? Should the kids be sent back to a brick-and-mortar school/daycare or continue with virtual schooling or homeschooling? What’s the best way to deal with logistics of shared parenting in a pandemic? Now, there is another potential point of contention: COVID-19 vaccines.
Not only is it a question of whether each parent will be vaccinated, but what to do when they disagree about whether their child should be vaccinated.
The distribution of vaccines in the U.S. has brought hope for many that we are seeing the beginning of the end of this pandemic. But as Hackensack family law attorneys, we anticipate there will be conflict. Some parents are adamantly against them while others are ardently for them. Even some who aren’t opposed to vaccines in theory may take issue with giving one that is so new to their child.
In March, NJ Spotlight News reported researchers were actually surprised to be flooded with New Jersey parents eager to sign their children up for COVID-19 vaccination trials, which are being organized by medical researchers at Rutgers. The American Academy of Pediatrics is strongly advocating for inclusion of children in vaccine trials to ensure they can return to school.
But once the vaccine becomes available to all kids, it won’t magically resolve the dispute between parents who disagree about whether their child should get it. This in turn can touch on every aspect of a child’s life. Is it safe for unvaccinated kids to return to in-person schooling? Travel on vacation? Play sports? Engage in playdates? What if one of the parents or a sibling is high-risk?
Legal Precedent for Vaccine Disputes Between Parents
This isn’t the first time Courts have been confronted with parental conflict over vaccines.
In 1905, the U.S. Supreme Court case of Jacobson v. Massachusetts. In that case, a man refused the smallpox vaccination, arguing that it violated his 14th Amendment right to personal autonomy. The Court ruled it is within the police power of the state to mandate vaccinations in order to guard and protect public health.
More recently, in the case of New Jersey Div. of Child Prot. & Permanency v. J.B., questions arose over whether the state could force parents to vaccinate their children over the objection of parents. Investigators had found signs of neglect and risk of abuse, and later learned from the kids’ doctors that they hadn’t been vaccinated and the parents cited religious reasons. The Court permitted the state to vaccinate the children. The parents appealed, arguing the law allows religious exemption for immunization of young students attending school. The appellate Court affirmed, finding the parents’ decision to refuse medical treatment for their child could be overridden if necessary to prevent harm to the children. The law they cited pertained only to school attendance, not intervention of child protective services.
In some states, governors have eradicated non-medical exemptions to vaccinations for public school children when there were outbreaks of communicable disease like measles. In 2019, just prior to the pandemic, lawmakers in New Jersey introduced one of the nation’s broadest proposed bans on religious exemptions to childhood vaccines. The bill would have ended policy that allows New Jersey parents to cite their religious beliefs as to why their kids aren’t immunized, without impacting school enrollment. The bill faced harsh criticism from vaccine skeptics, and it ultimately collapsed. Lawmakers vowed to raise the issue again.
So that brings us to COVID-19. In prior disputes between parents about vaccines, Courts have generally held that the parent with medical decision responsibility is the one who decides about the vaccines. However, the Courts can modify a parental responsibility assignment for major decisions (which could include vaccines) if there is a substantial change in circumstance and it’s in the child’s best interests. COVID-19 could be argued as a substantial change in circumstance that directly impacts the child’s well-being when it comes to being vaccinated. In that case as well as in situations where parents share joint responsibility for medical decisions, it’s likely a judge will make the final call. Parents may be better off trying to mediate the matter first, if possible.
If the case goes to Court, hearings would likely require testimony from expert medical witnesses about the COVID-19 vaccine and the pros and cons of a particular child receiving a dose. If states or school districts at some point require COVID-19 vaccinations of children, some disputes may also include arguments for and against homeschooling.
Any parent preparing for possible conflict on this front should start now by contacting an experienced New Jersey family law attorney as soon as possible.
Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.