How Your Child’s COVID-19 Vaccine Status can Affect Custody

[10.26.2021]

We are starting to see stories of parents litigating over whether to vaccinate their children for COVID-19.

There are even some examples of parents having their custodial rights changed or taken away for not getting their children vaccinated. Whether to vaccinate your child is a parent’s prerogative still, but what if you and the other parent disagree? Can you gain/lose custody of a child based on my position on vaccinating your child? Unfortunately, the answer may be yes.

In most states, custody is divided into two types, physical custody, and legal custody.

Physical custody is who the child primarily lives with. In most cases, one parent has primary physical or sole physical custody and the other parent has a specific visitation schedule. There are also cases where the parents have shared physical custody where they share equal time with the child or close to equal.

Legal custody is all about decision-making for the child. Custody decisions can include the child’s education, activities, medical care, mental health counseling, and generally anything a parent decides for a child. Most parents usually end up with joint legal custody, which is where they have the equal power to make decisions for the child and must agree on decisions before either can act. Sometimes though, courts will award one parent sole legal custody, meaning one parent gets to make all the decisions without the other parent agreeing. This usually happens in cases where the parents have significant disagreements over important issues involving the child and/or the parents can’t effectively communicate. A parent can be awarded sole legal custody on all issues or singular issues as the judge determines. In other words, one parent can be granted the right to decide whether to vaccinate a child even when the parents must agree on everything else.

It’s probably unlikely you would lose physical custody of a child because of a disagreement on a COVID-19 vaccine. But it could happen.

Some examples would be if one parent makes the unilateral decision to vaccinate a child and the other parent was not consulted and/or strongly disagrees. Another example would be a parent withholding a child from the other parent because they disagree on vaccination. While normally singular issues like this wouldn’t lead to a transfer of custody, we have never seen a situation like this before and we truly don’t know how the vaccine issue could play out in litigation.

Where a court will likely decide vaccine disputes is on the issue of legal custody. Say for example co-parents have joint legal custody one parent strongly supports vaccinating a child and the other parent objects. If they take the issue to court, a judge could rule that one of the parents has sole legal custody on the singular issue of vaccination, medical decisions generally, or all issues. In other words, one parent loses their legal custody rights.

Another example that could come up is the judge simply ordering the child vaccinated. Judges in custody cases have broad discretion in most states, including ordering children into medical and/or mental health treatment. Some states even have laws mandating vaccines for other diseases already. In other words, a judge may not change legal or physical custody and simply order a child to get the COVID-19 vaccine.

The bottom line is this issue is not going away and may be the next big battleground nationwide in custody cases.

It’s critical you have an attorney with extensive experience in custody matters representing you. WhitbeckBennett is working on these issues everyday and can help you navigate these issues in your home county or city. Gives us a call to schedule a consultation.

At WhitbeckBennett, we have several partners and associates with extensive litigation experience. If you need help with an upcoming deposition, give us a call to set up a consultation.

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

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