For many parents, the COVID-19 pandemic has sparked fierce debate about appropriate medical care for children. Following recent recommendations from the Centers for Disease Control and Prevention and the American Academy of Pediatrics that all children aged six months to five years old receive a COVID-19 vaccine, many parents are struggling to decide whether to vaccinate their young children. For divorced or separated parents, vaccine disagreements can further exacerbate contentious custody disputes. Many parents may wonder what their options are if they cannot agree with their co-parent about vaccinating their child. 

Who decides whether children receive vaccines?

The type of custody that each parent has will determine who can make the final decision on vaccines.  There are two different types of custody for family law matters in Massachusetts.     

• Physical custody refers to where the child lives.  
• Legal custody refers to which parent makes the important life decisions on behalf of the child, such as decisions related to education, religion, and medical care.  

Decisions about vaccines fall under the umbrella of legal custody. If one parent has sole legal custody, that parent has the authority to decide whether to vaccinate their child. If both parents share legal custody, however, they must make a joint decision about whether to vaccinate their child. Not surprisingly, this decision can lead to heated disputes over whether to vaccinate.

What are the options if you cannot agree?

If parents cannot agree, they may attempt to resolve the issue through alternative dispute resolution (ADR) or bring the issue to the court. Many parties start with ADR because it is often faster and less expensive than going to court. ADR typically involves either mediation or conciliation. During mediation, the parties meet with a neutral third party, who will try to facilitate a discussion between both parties to help them come to an agreement.  In contrast, during conciliation, the parties will meet with a third party, typically a retired judge, who acts in an advisory role, and gives their opinion on how the parties should resolve the issue.  Mediation and conciliation are not binding on the parties, meaning that the parties can always choose to go to court if ADR is unsuccessful.  Settlement discussions during either form of ADR are not admissible in court.  

ADR can be a helpful option for parents who want to reach a resolution without court intervention, but it is not recommended in situations where there is a power imbalance between the parties or where neither party is willing to compromise. If ADR is unsuccessful, the next option is to bring the issue to a Probate and Family Court judge.  

What will the Court do?

It is important to understand that a judge will not order a child to be vaccinated. The judge can, however, award one party sole legal custody on the issue of vaccination. That parent will then have the authority to decide whether to vaccinate the child, even over the other parent’s objections.  

When completing this analysis, the judge will apply the “best interests of the child” standard. As part of their analysis, the judge will consider a number of factors, including:

• Recommendations from the child’s pediatrician.     
• Whether the child has underlying medical conditions.      
• The child’s vaccination history.     
• Whether remaining unvaccinated would prevent the child from participating in daycare, school, or extracurricular activities. 

In considering these types of information, the judge is more likely to credit objective evidence from the child’s medical providers and studies from reputable health organizations, as opposed to anecdotal evidence from less verifiable sources.  

The Court may also consider each parent’s reasons for wanting or not wanting their child to be vaccinated. Importantly, the judge can consider whether a parent is motivated by political beliefs as opposed to actual medical considerations. For example, the judge might choose to review parents’ social media posts about vaccines or the pandemic. If the judge believes a parent’s position is motivated by political beliefs, rather than the child’s best interests, the judge may decide to award sole legal custody, at least with respect to vaccinations, to the other parent.  

This area of the law is developing and will likely develop further as the public health situation evolves and as more information about the efficacy of vaccines for young children becomes available.  

If you need guidance on a disagreement about COVID-19 vaccines with your co-parent, please contact the attorneys from our Domestic Relations/Probate practice group.