North Carolina Lawyers Weekly
Earlier this month, the director of the White House Coronavirus Task Force said that vaccinating everyone in America against COVID-19 is one of the greatest operational challenges the country has ever faced and “we will not stop working until the mission is complete.”
The sense of urgency is not in doubt. But the mission will likely be complicated in some cases by divorced and separated parents who are divided over whether their children should get a COVID-19 vaccine–including some couples who have trouble working collaboratively even in normal times.
Vaccine hesitancy is almost as old as vaccination itself and remains common today, despite the overwhelming evidence that vaccines protect children and adults against diseases and the lack of any evidence of any negative effects caused by them. Surveys suggest that, despite the clear and present danger of COVID-19, many people are unsure about whether they want a vaccine, or whether they would want to take their children to get vaccinated once that becomes possible.
“It’s a situation where I don’t think anybody has the answers right now, but it’s important to identify what the potential hot-button issues are going to be,” said Heather Forshey, an attorney with Raleigh Divorce Law Firm.
So far, no vaccine has been approved for an emergency use authorization for people under the age of 17, and there’s no clear timeline for when children will be able to get vaccinated, but there’s hope that a vaccine for children as young as 12 could be in use before the start of the next school year this fall. But regardless of the exact timing, at some point child vaccinations will begin, and that will create a new set of issues for family law attorneys and family courts to navigate.
One of the biggest issues that family attorneys expect to encounter is whether COVID-19 vaccinations will constitute a “major medical decision.” If a parent has sole custody of their children, they can make any major medical decisions on their own. But many separated or divorced couples share custody and thus share in those decisions and need to make them jointly. (Some separated couples simply agree to divvy up their decision-making powers, so one parent is allowed to make medical decisions, while the other might get to make decisions about, say, education.)
Ken Peck, a family law attorney in Charleston, S.C. who is 70, said that getting the vaccine could be considered a major medical decision for him, but children aren’t at as high of a risk for serious illness or death from COVID-19 as older people are.
“Getting a flu shot is not a major medical decision, so I don’t know if this particular shot should be different from any other,” Peck said.
Divorced parents already sometimes have arguments over medications or whether their children need certain types of medical treatment, said Dustin McCrary, a family law attorney in Statesville, and he expects that COVID-19 vaccines will be no different.
He and other family law attorneys said that the best course of action for parents who disagree may be to mediate their differences and consult with doctors and do what is necessary to keep the fight out of the family courtroom. COVID-19 has already created a backlog of cases, and family law judges do not like to rule on medical issues, McCrary said.
In theory, judges wouldn’t actually be ruling on whether a child should get a vaccine, but rather which parent has the best interest of the children at heart and should be allowed to make that decision, said Matt Myers, a family law attorney in Charlotte. But in practice the two issues can sometimes blur. Myers once represented a father who was granted sole custody of his daughter after the girl’s mother refused to acknowledge that she suffered from allergies and get treatment for her.
It’s not yet known whether schools will require COVID-19 vaccinations once they become widely available. Some vaccinations are already required for school attendance, and exceptions can be granted only for bona fide religious or medical reasons, not for philosophical or other objections. If schools mandate the vaccine, that could effectively make the issue moot, McCrary said.
Another potential wrinkle, particularly if schools don’t require vaccinations, is that one parent could simply decide to take their child to get the jab without telling the other.
“The parent gets the kid the shot and tells the parent there is nothing you can do about it–it’s already in the child’s body,” Peck said. “It’s not like you’re going to extract it back out.”
Some parents might be tempted to resolve the issue by letting their children decide for themselves whether they want COVID-19 vaccinations, but Forshey, who believes the COVID-19 vaccine constitutes a major medical decision, advises against that.
“It is very dangerous to empower children about these types of decisions,” Forshey said. “They need to be made by a parent.”
Follow Bill Cresenzo on Twitter @bcresenzonclw
