By John Ramsey & Janet Stewart
The roll-out for the COVID-19 vaccine is upon us. The sense that there may be a light at the end of this tunnel is growing. But as with all things surrounding the pandemic, nothing is simple and nothing seems to be without controversy.
Thus far, the expressed approach to the roll-out of the vaccine is to start with populations at greatest risk, including the elderly as well as frontline medical providers. From there, the vaccine will likely be made available to other segments of the adult population. But what about children?
To date, there has been no announcement of the availability of a vaccine for children as the trials to determine the efficacy and safety of a vaccine for children have not been completed. But it is no doubt coming and with it will come controversies that may likely exceed those seen with the release of the vaccine to the adult population.
As family law lawyers, we have seen first-hand the challenges that parents have faced throughout the COVID-19 pandemic. The frequency and level of disagreement has increased. Co-parents have frequently been on opposite sides of the fence on basic and fundamental parenting issues such as whether a child should attend school in-person and whether they should play sports, have play dates or visit family. Family law attorneys and courts across the country have been working hard to help families navigate these ever-uncertain times, often while personally wrestling with the same issues for their own families.
But the vaccination of children poses unique and potentially more profound legal challenges. Simply stated, what happens when two co-parents disagree on whether a child should receive the COVID-19 vaccination? To best answer that question, we will explore multiple factors that Ohio courts will likely look to in determining what is in the child’s best interest. We will also be providing subsequent articles on the vaccine status and how it impacts these factors.
To Vaccinate or Not to Vaccinate: What Happens When Parents Disagree?
Parental Rights, Custody and Medical Decision-Making
Before jumping into COVID-19-specific-issues, we first need to quickly 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, which provides that no citizen of the United States shall be deprived, by the government, of “life, liberty, or property without due process of law.” As it pertains to parents, the Due Process Clause of the Fourteenth Amendment has been interpreted to guarantee the right to direct the care, custody and control of their minor children—including to make medical decisions for their children. But what happens when one parent feels strongly that the child should be vaccinated and the other parent strongly disagrees?
The COVID-19 Vaccine: How Ohio’s Domestic Relations and Juvenile 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. And when two parents are seeking the court’s assistance on whether to immunize the child (or rather asking the court to determine which parent shall be permitted to make that decision), there are various facts and factors that will likely be important in that analysis:
- Prior Court Orders – As an initial matter, Courts will likely look to any prior orders in the case regarding which parent has medical decision-making authority or by what process the parties have agreed to resolve disputes involving medical decisions for the child. But if the orders are unclear on this issue or either party 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 – Courts will likely look to the recommendations of recognized federal and state medical experts such as the CDC, FDA and NIH to understand whether any vaccine for COVID-19 is safe for children. Such an approach aligns with the court’s traditional reliance on the guidance and information of relevant, neutral medical authorities. Courts will also likely be looking to the guidance of private organizations such as the American Academy of Pediatrics and similar organizations on this issue.
- Recommendations of the Treating Physicians – This factor will likely have a renewed emphasis in connection with disputes as to the COVID-19 vaccine as there are a significant number of unknowns regarding the long-term effects of the illness (and the vaccine) on children. The opinion and testimony of the affected person’s treating medical provider may likely prove very important in these situations. This will be even more important as many parenting orders look to the guidance of a child’s primary care physician when the parties cannot agree on a course of treatment.
- Public Policy and Practical Considerations – Federal and state medical experts will likely direct public policy as it relates to the COVID-19 vaccine. For example, one possible public policy consideration which may prove to be important is the efficacy of the COVID-19 vaccine as it relates to the theory of herd immunity and the specific critical mass threshold for herd immunity in society, at large. Ohio courts will also likely consider whether the children and/or parents are practically impacted by a decision not to vaccinate. For example, certain businesses and employers (see KJK’s article on this here), including airlines, restaurants and publicly-funded services, may ultimately require proof of vaccination in order to utilize their services. Moreover, as we will discuss more thoroughly in a subsequent article, Ohio public schools may ultimately require vaccination of a child in order for he/she to attend.
- 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 of the ultimate issue. In prior Ohio vaccination and medical decision-making cases, some parental objections which have been viewed legitimate include, but are not limited to, religious objections, objections to the contents of vaccines and/or possible side effects, philosophical concerns and preference for holistic or organic medicine.
- Past Practices and Circumstances of The Family – The past practices of the particular 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 and thus, when faced with a dispute, courts may be less inclined to deviate from the past practices of the family, without compelling reason.
It is important to note that all COVID-19-related vaccination disputes in the divorce and child custody space will be unique and highly 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. If you or your family have questions about the vaccination issue, please contact John Ramsey at jdr@kjk.com or Janet Stewart at js@kjk.com or by phone at (216) 696-8700.