Who Calls the Shots? Divorced Parents and the Choice to Vaccinate Their Children Against COVID-19

by Baylee Kalmbach, Notes and Comments Editor, University of Cincinnati Law Review Vol. 91

I. Introduction

The coronavirus disease (“COVID-19”) created mass disruption in our day-to-day lives and relationships with others. “On February 25, 2020, parents were routinely sending their children to school, and two days later at least one school officially shut its doors because of COVID-19.”1The Coronavirus Spring: The Historic Closing of U.S. Schools (A Timeline), Education Week (July 1, 2020), https://www.edweek.org/leadership/the-coronavirus-spring-the-historic-closing-of-u-s-schools-a-timeline/2020/07. Thereafter, nearly 50.8 million public school students shifted to distance learning,2Id. some still either fully remote or in a hybrid setting nearly two and a half years later.3COVID Data, U.S. Department of Education, https://www.ed.gov/coronavirus/data (last visited Apr. 30, 2022).

While the shutdown was initially intended to slow the spread of the disease for everyone’s safety, especially protecting elderly people and those with pre-existing conditions, as society began to realize the lingering effects of COVID-19, studies reveal that the pandemic has “a disproportionate impact on the youngest generation.”4Finding Hope During a Difficult Time, global fund for children (Mar. 3, 2022), https://globalfundforchildren.org/news/finding-hope-during-a-difficult-time/?gclid=Cj0KCQjwvLOTBhCJARIsACVldV1vVe_LWP2UYaPQvaWI1CuHmrAf_4V3237ofGlWWs8-BLnQBkWqiWcaAlkfEALw_wcB. Recently, these studies have focused on children’s literacy because of remote-learning, an increase in poverty due to international financial instability, and higher rates of anxiety and depression related to isolation and lack of structure or routine.5Id.

Further, as of March 2022, doctors reported that “[c]hildren seem to be facing increasing risks from COVID-19 even as mask mandates drop across the country, and vaccination rates among children stall out at alarmingly low rates.”6Melody Schreiber, A fifth of all US child COVID deaths occurred during Omicron surge, The Guardian (Mar. 11, 2022), https://www.theguardian.com/world/2022/mar/11/us-child-covid-deaths-omicron-surge.   One week during the Omicron-surge, cases among children neared 1,150,000.7Children and COVID-19: State-Level Data Report, American Academy of Pediatrics (Apr. 21, 2022), https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-state-level-data-report/. In the third week of April, more than 37,000 cases were reported, continuing to show an increase in infection as the virus mutates over time.8Id. As of April 27, 2022, despite the virus’s ongoing and increasing impact on children, 18.5 million U.S. children ages 5-11 were not yet vaccinated against COVID-19.9Children and COVID-19 Vaccination Trends, American Academy of Pediatrics (Apr. 27, 2022), https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-vaccination-trends/.

Of course, the gap in children’s vaccination rates is majorly, if not entirely, a result of parental concern.10Peter Ramjug, Kids’ COVID-19 vaccines are available. So why are parents’ concerns still so high?, Northeastern University Research (Mar. 23, 2022), https://research.northeastern.edu/parent-covid-vaccine-hesitancy/#:~:text=But%20even%20if%20immunizations%20were,it%20was%20a%20major%20concern. For instance, a recent study revealed that despite FDA approval of the pediatric-Pfizer vaccine, parents were unwilling to vaccinate their children either because of potential long-term effects, insufficient testing, or both.11Id. And for divorced parents who share custody, even if one parent wants to vaccinate their child against COVID-19, the other parent’s objection could potentially bar the child’s access to the vaccine, or at least stall it.12Debra Kamin, You Want Your Child Vaccinated, but Your Ex Says No, The New York Times (Apr. 4, 2022), https://www.nytimes.com/2022/04/04/well/covid-vaccine-divorced-parents.html. As society continues to push­­–or pushback–for vaccinating children against the virus, “family court judges across the commonwealth have seen skyrocketing numbers of similar cases: Divorced parents who can’t agree on what to do.”13Nina Feldman, COVID-19 Vaccines Are Some Divorced Parents’ Newest Divide, Science Friday (Apr. 29, 2022), https://www.sciencefriday.com/segments/covid-vaccines-divorce/.

This article will discuss divorced parents and the choice (and feud) of whether to vaccinate their children against COVID-19. Part II will discuss parental rights, obligations, state intervention, and how all are further complicated when parents divorce. Part III will discuss how state intervention and parental responsibilities and rights are affected by the pandemic, as well as outline the considerations courts typically turn to in medical care disputes by divorced parents with equal legal custody.

II. Background

Within family law concerning child welfare, there are generally two broad themes: what a parent may do, and what a parent must do.14Ann Hubbard, Parental rights and responsibilities: constitutional foundations, Family Law (2022). This section will discuss those rights and duties for both married and divorced parents, and how the state may intervene when parents fall short.

A. Parental Rights and Responsibilities

“Parents have [a] long recognized fundamental constitutional right to make decisions about the care, custody, and control of their children.”15Id. The law in this area is rooted in due process; Meyer v. Nebraska and Pierce v. Society of Sisters illustrate the general recognition that states may not interfere with parents’ rights in choosing how to raise their children.16262 U.S. 390 (1923); 268 U.S. 510 (1925). More recently in Troxel v. Granville, the Supreme Court of the United States declared “the interest of parents in the care, custody, and control of their children [as] perhaps the oldest of the fundamental liberty interests recognized by [the] Court.”17530 U.S. 57, 65 (2000).

Within this area, states typically leave parents with the freedom to raise their children, subject to some obvious restrictions. First, states do not leave parents with the choice of whether to raise their children, but instead leave them with freedom in electing how to care for, provide for, and raise them.18Parental Rights Cases to Know, American Bar Association (Feb. 1, 2016), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-35/february-2016/parental-rights-cases-to-know/. For example, parents are certainly not at liberty to abuse their children, cause them harm, and/or deprive them of “essentials such as food, clothing, habitation, health, and education.”19Ruth Farrugia, Parental Responsibility & State Intervention, 31 Cal. W. Int’l L.J. 127, 128 (2000). However, they do have the right to choose the religious, educational, and other like upbringings for their children.20Id.

Interestingly, children’s rights are not exactly recognized as a theme in family law, but rather their interests. Therefore, lack of state intervention within the raising of children is grounded upon the fundamental assumption–and prerequisite–that fit parents will act in the “best interest” of their children.21Id. at 130. Absent this prerequisite, states may well be permitted to impose additional obligations on or intervene with otherwise valid parental decisions.22Id.  

B. State Intervention

It is a fundamental principle that “[p]arents, not state actors, are best positioned to understand their children’s needs and to promote their child’s interests.”23See Hubbard, supra note 14. Yet, because “[t]he child is not the mere creature of the state[, and] those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,”24Pierce, 268 U.S. at 535. the State, having recognized interests in the life and health of minors, may enforce parental responsibilities in many ways.25Ann Hubbard, Parents, State, and Minors’ Healthcare, Family Law (2022).

1. Weighing Interests

Because parental rights are inherent in the Constitution, compelling state (and sometimes third-party) interests must justify burdening this protected liberty interest.26Id. Recognizing a special vulnerability in children, common areas states will intervene to protect children from unnecessary harm extend beyond child safety and neglect, and into areas such as child labor, medical care, and even education.27Id.

For example, the classic case Wisconsin v. Yoder illustrates how even extremely compelling state interests will not always overcome parents’ choice, especially when religion is at play.28406 U.S. 205 (1972). In this case, three Order Amish parents were prosecuted in Wisconsin for violating a law which required all children in the state to attend public school until the age of 16.29Id. Because public high schools teach fundamentally conflicting values from the Amish way of life, the parents argued that the law violated not only their First Amendment rights to freely exercise their religion, but also their Fourteenth Amendment rights “with respect to the religious upbringing of their children.”30Id. at 214. Here, the Court held that the state’s interest in compulsory education did not outweigh the Amish parents’ rights in choosing how to raise their children, especially when recognized historical religious beliefs further justify and bolster the parents’ decisions.31Id. at 227-28

Notably, State considerations are given way less credit, and parental choice is given considerable deference, in parental-choice cases involving religion.32See Hubbard, supra note 25. However, these considerations are slightly different when children’s health and safety is on the line, yet generally still aim to protect the rights of parents, absent truly compelling justifications to intervene.33Id. 

2. Parental Decisions about Medical Care

In parental decisions about children’s health, “contemporary law defers to parental authority but limits that authority if the parent’s decision poses a risk of serious harm to the child or, in some instances, to public health.”34Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev. 1371, 1426 (2020). For instance, in In re Green, the court was presented with an issue of potential medical neglect based on the withholding of treatment due to the religious beliefs of the parent.35292 A.2d 387 (Pa. 1972). The Jehovah’s Witness mother refused a spinal-correcting surgery which would allow her son to stand and move, things he would likely not be able to do without the procedure.36Id. at 388. Here, the court held that when the treatment is merely beneficial and not required for survival, and where the “child’s life is in no immediate danger,” the State may not override a parents’ decision to withhold medical treatment or punish a parent for refusing that treatment because of a religious belief.37Id. at 390.

However, the court also recognized cases in other jurisdictions where states were allowed to order lifesaving treatments involving blood transfusions when parents refused to consent (and even on religious grounds).38Id.; People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952). For example, in People ex rel. Wallace v. Labrenz, a child with a blood condition needed a life-saving blood transfusion, or he would likely die per three doctors’ testimonies.39104 N.E.2d at 771. Even though the parents refused to consent on religious grounds, the court determined that the risk of the health and welfare of the child, coupled with compelling public interest considerations, were too great to justify and confirm the parents’ decision.40Id. at 772. Here, when medical refusal consequently has a “substantial threat to society,” deference to parental choice is much more limited, if not completely eliminated: “[t]he right to practice religion freely does not include liberty to expose the community or child to communicable disease or the latter to ill health or death.”41Prince v. Massachusetts, 321 U.S. 158 (1944).

Notably, the majority of these parental choice disputes involve either one parent with legal custody making the decisions, or multiple parents making decisions together. These scenarios are far more complicated when divorced parents are involved.  

C. Divorced Parents and Decision-Making

Divorced parents and decision-making principally depends on the type of custody agreed to (or ordered).42What’s the Difference Between Legal Custody and Physical Custody?, Cordell Cordell, https://cordellcordell.com/resources/the-difference-between-legal-custody-and-physical-custody/#:~:text=In%20almost%20all%20cases%20both,daily%20caretaking%20of%20the%20child (last visited May 12, 2022). While physical custody simply deals with where the children live, legal custody “involves decision making regarding the child’s life [like] medical care, schooling and education, and religious upbringing.”43Id. Unlike physical custody arrangements where, typically, a child primarily lives with one parent and spends considerably less time in the custody of the other, legal custody is generally shared fifty-fifty.44Id.

If only one parent possesses legal custody of the child, that parent can make any medical decision without consulting the other, even if the second parent has physical custody rights.45Hillary Moonay, Vaccinations and Custody: What happens when divorced, separated or unmarried parents can’t agree?, JDSUPRA (Nov. 11, 2021), https://www.jdsupra.com/legalnews/vaccinations-and-custody-what-happens-9769848/. However, if divorced parents share legal custody, then they must mutually agree on a medical (or other serious) decision for their child.46Id. Simply put, even for the parent who has minimal physical custody of the children, that parent still has a legal right to be involved with major decisions involving the children.47See Cordell Cordell, supra note 42. But in cases where divorced parents cannot come to an agreement, they can instead equally take the issue to court and have a judge decide.48Douglas NeJaime et al., Family Law in a Changing America, 892 (1st ed. 2021).

III. Discussion

Although a toxic and failing marriage can be devastating on children, “[d]ivorce does not end, and may exacerbate, patterns of parental conflict for some families.”49Id. at 901. And as already mentioned, COVID-19 has an especially crushing effect on children.50See Global Fund for Children, supra note 4. Given these points, parental feuds on whether to vaccinate their children makes them even more convoluted.

As “[l]awyers who work in divorce and family law say they’ve seen a marked increase in cases centering on vaccination disputes in recent months,”51Hayley Fowler, Divorced parents are divided on COVID vaccines for kids. What are their options?, Miami Herald (Jan. 13, 2022), https://www.miamiherald.com/news/coronavirus/article257215847.html. if parents with joint legal custody cannot come to a decision on whether to vaccinate their children against COVID-19, and instead opt to dispute it legally, courts will decide and enforce what is in the best interest of the child.52See Moonay, supra note 45.

A. Pediatric-COVID Vaccine

On October 29, 2021, more than a year and a half after the start of the pandemic and nearly six months after the vaccine was approved for individuals ages twelve to fifteen, the U.S. Food and Drug Administration (“FDA”) finally approved the use of the COVID-19 vaccine in children ages five to eleven.53FDA Authorizes Pfizer-BioNTech COVID-19 Vaccine for Emergency Use in Children 5 through 11 Years of Age, FDA (Oct. 29, 2021), https://www.fda.gov/news-events/press-announcements/fda-authorizes-pfizer-biontech-covid-19-vaccine-emergency-use-children-5-through-11-years-age. At the time, “COVID-19 cases in children 5 through 11 years of age [made] up 39% of cases in individuals younger than 18 years of age.”54Id. As mentioned previously, we know today that the virus continues to have a significant and detrimental impact on our youth, and a notably low percentage of children ages five and older have actually received the vaccine.55See American Academy of Pediatrics, supra note 9. Since FDA approval for pediatric-COVID vaccines is a relatively recent development, many questions regarding requirements by the state, including within public schools, to vaccinate children remain largely unanswered and highly anticipated.56Kayla Hui, Will COVID-19 Vaccines Be Required In Schools?, very well health (Mar. 24, 2022), https://www.verywellhealth.com/will-covid-19-vaccines-be-required-in-schools-5092514.

1. Requirements by the State

The Supreme Court of the United States has historically recognized that states’ police power extends to the authority to enact legislation intended to promote public health and safety.57Jacobson v. Massachusetts, 197 U.S. 11 (1905). For instance, in Jacobson v. Commonwealth of Massachusetts, the Court was presented with the issue of whether compulsory vaccinations under various state statutes was constitutional.58Id. In emphasizing that “’[t]he possession and enjoyment of all rights are subject to reasonable conditions [that are deemed] essential to the safety, health, peace, good order, and morals of the community,” the Court held that a statute requiring individuals to be vaccinated in public health emergencies did not infringe on their constitutional rights and liberties.59Id. at 27.

Further, just as states have the power to require some education for children, states also have the power to regulate schools.60Why do States Have Rule over Education?, Teachnology, https://www.teach-nology.com/edleadership/school_goverance/ (last visited May 12, 2022). For instance, in Prince v. Massachusetts, the Court recognized various areas where a state could require certain actions of and impose limits on parental choices for public students, including requiring compulsory vaccinations to protect the child and the community from communicable diseases.61Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Today, virtually every state requires children attending public schools to receive four common vaccines as a prerequisite to enrollment and attendance: Diptheria-Tetanus-Pertussis, Measles, Mumps, and Rubella, Polio, and Varicella.62State School Immunization Requirements and Vaccine Exemption Laws, Center for State, Tribal, Local and Territorial Support, https://www.cdc.gov/phlp/docs/school-vaccinations.pdf (last visited May 12, 2022). Further, states like Alaska and Rhode Island may even require hepatitis A and B vaccines, as well as the human papillomavirus (HPV) vaccine.63Id. Simply put, state compulsion to receive various vaccines is not a new idea or practice.

Because of the state’s police power to compel vaccination status, and to specifically require children to be vaccinated before attending public school, it is likely that at least some states will require the COVID-19 vaccine for public school students soon.64See Hui, supra note 56. However, just as the Court in Jacobson recognized that children may be exempt from compulsory vaccines even where such requirements are intended to fight “an epidemic threatening safety of all,”65Jacobson v. Massachusetts, 197 U.S. 11, 28 (1905). typically every state recognizes either a medical or religious exemption for children attending public schools.66See State School Immunization Requirements and Vaccine Exemption Laws, supra note 62. For example, in California, a state that only recognizes medical exemptions, if a parent produces documentation from a licensed physician that indicates a certain immunization is not safe for the specific child, the state will not compel the parent to vaccinate against that physician’s recommendation.67Id. In states like North Dakota that recognize religious exemptions, sometimes all a parent needs to do is “sign an exemption form stating that the child has a beliefs exemption and indicate which vaccines are exempt because of beliefs.”68Id.

On the point of parental consent, despite FDA approval and general availability for children ages five and older to receive the COVID-19 vaccine, many states still require that any child under the age of eighteen receive permission from a parent first.69State Parental Consent Laws for COVID-19 Vaccination, KFF (Oct. 11, 2021), https://www.kff.org/other/state-indicator/state-parental-consent-laws-for-covid-19-vaccination/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D. So, the question remains: even if the State and public schools do not require the COVID-19 vaccine for children, will parents nonetheless have a duty to vaccinate their children against the deadly disease?

2. Is there a Duty to Vaccinate?

Vaccines for children have historically been controversial topics among parents and the rest of society.70Robert Aronowitz, The controversy surrounding vaccinations, then and now, Penn Today (Oct. 29, 2021), https://penntoday.upenn.edu/news/controversy-surrounding-vaccinations-then-and-now. For example, in February 2020, right before COVID-19 caused the world to shut down, a four year old boy died from the flu after members of an “anti-vax” Facebook group told his mother to try natural remedies, such as lavender oil and thyme, as a holistic alternative to receiving the annual flu vaccination.71Natasha Bhuyan, The Lady with Lavender Essential Oils Is the New Dr. Google, AAFP, https://www.aafp.org/news/blogs/freshperspectives/entry/20200224fp-media.html (last visited May 12, 2022). Even though the child’s death sparked considerable outrage among faithful science-believers, causing one doctor to even describe the incident as illustrative of “the height of a powerful anti-vaccination campaign,”72Id. not getting your child the flu vaccine is not unlawful. “The bottom line is that vaccines have been proven safe and effective at protecting public health and keeping individual children healthy. However, vaccines are an individual decision made by families.”73Why Aren’t Parents Vaccinating Their Children?, Comprehensive Primary Care, https://comprehensiveprimarycare.com/why-arent-parents-vaccinating-their-children/ (last visited May 12, 2022).

Besides the fact that vaccines are generally treated as another area where parents are given considerable discretion (of course absent any requirements by public schools or daycare), because the vaccine will likely not be seen as a lifesaving treatment, but rather a life-preserving treatment (if that), a court would likely not compel the duty to vaccinate their children on parents who refuse to consent.74See In re Green, 292 A.2d 387 (Pa. 1972).

Yet, children and their families are not the only ones impacted by their non-vaccination status. In fact, many scientists report that while children were initially seen as more resistant to the symptoms of COVID-19 and did not contribute much to the spread of the disease, more recent studies show that children are just as capable of transmitting and spreading the disease.75Coronavirus outbreak and kids, Harvard Health Publishing (Mar. 29, 2022), https://www.health.harvard.edu/diseases-and-conditions/coronavirus-outbreak-and-kids. Even though “[p]ublic health measures are as important for kids and teens as they are for adults,”76Id. beyond the public school context, parents are generally still not duty-bound to vaccinate their children.77Anthony Ciolli, Mandatory School Vaccinations: The Role of Tort Law, 81 Yale J Biol Med. 129 (2008). 

While courts will likely not intervene with a parent’s right to refuse to consent to the vaccine, they may just have to if divorced parents cannot agree.

B. Divorced Parents: Who Calls the Shots?

The decision to vaccinate children among divorced parents who cannot decide will depend on state law, custody and decision-making agreements, and when the issue is taken to court, recommendations from medical authorities to determine whether to vaccinate.

1. At Odds Parents

Divorced parents with equal legal custody each have the right to be involved in and consent to medical decisions for their children.78See Moonay, supra note 45. For that reason, making a unilateral vaccination decision is generally not recommended. Yet, with such enhanced controversy surrounding vaccinating children, many divorced parents will not agree on whether their child should receive the COVID-19 vaccine. For instance, studies show that, even though there is little research to support this concern, some parents are worried over their child’s future fertility due to the potential negative side effects of the vaccine.79Melissa Suran, Why Parents Still Hesitate to Vaccinate Their Children Against COVID-19, JAMA Network (Dec. 15, 2021), https://jamanetwork.com/journals/jama/fullarticle/2787289. Others prefer to “wait and see” how the vaccine affects other children, or if their child will simply remain healthy without it.80Id.

On the flip side, because studies reveal that children are just as susceptible to the virus, and COVID-19 cases continue to increase in children,81See American Academy of Pediatrics, supra note 9. other parents avidly advocate for their children and others to be vaccinated.82See Suran, supra note 79. Plus, because the vaccine can also prevent the spread and symptoms of the disease, some parents want their children to be vaccinated to promote the health of their immediate family members, those with pre-existing conditions, and public health in general.83Id.

Recognizing strong opinions on every side of this debate, if parents who share legal custody cannot reach an agreement on their child’s vaccination status, then they “may appear before the court ‘on equal footing’ to have the court decide what is in the best interest of the child.”84See NeJaime, supra note 48, at 892.  

2. The Courts

When courts are presented with any type of medical dispute, either where parents cannot agree, or where medical providers believe that parents are not acting in the best interest of their child, courts do not merely “authorize” a certain decision.85What if my co-parent and I can’t agree on medical decision making?, Burnham Law (Aug. 16, 2020), https://burnhamlaw.com/help-center-articles/what-if-my-co-parent-and-i-cant-agree-on-medical-decision-making/. Instead, if a court finds that it needs to intervene on a parental decision, then it will grant one of the parents (or outside state actor/third party) temporary legal guardianship to carry out whatever action the court finds is in the best interest of the child.86Id.; People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952). Before deciding this though, the court will need to evaluate the evidence presented by both sides.

For instance, in recent vaccine disputes brought by divorced parents, courts have evaluated expert medical journals, FDA approval of and statistics on pediatric-COVID-19 vaccinations, and whether parents previously accepted other childhood vaccines.87Christine Nguyen, Divorced parents are going to court over vaccinating kids against the coronavirus, The Washington Post (Oct. 7, 2021), https://www.washingtonpost.com/lifestyle/2021/10/07/divorced-parents-covid-vaccine-court/. While “judges tend to lean heavily on the medical advice of pediatricians,”88See Feldman, supra note 13. this determination becomes especially difficult when not all doctors agree on whether children should receive the COVID-19 vaccine. For instance, while the Centers for Disease Control and Prevention (“CDC”) recommend that healthy children be vaccinated,89COVID-19 Vaccines for Children and Teens, Centers for Disease Control and Prevention (Apr. 7, 2022), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/children-teens.html#:~:text=About%20Vaccination%20for%20Children%20and,help%20protect%20against%20COVID%2D19. and most medical professionals tend to rely on that recommendation,90Sara Berg, What doctors wish parents knew about kids’ COVID-19 vaccine safety, AMA (Jan. 21, 2022), https://www.ama-assn.org/delivering-care/population-care/what-doctors-wish-parents-knew-about-kids-covid-19-vaccine-safety#:~:text=Vaccination%20was%20nearly%2091%25%20effective,throughout%20the%20COVID%2D19%20pandemic. other doctors who practice holistic medicine or who are skeptical of the vaccine argue that COVID-19 vaccines for children accompany extreme risks and potential adverse side effects.91See Feldman, supra note 13.

However, an anti-vax blog post authored by an individual with no medical background or experience will not override scientific data or a licensed physician’s recommendation that a child receive the COVID-19 vaccine.92Id.; See Nguyen, supra note 87. Instead, relevant evidence for the judge to consider would be the child’s medical history, any previous adverse reactions to vaccines, and whether the child has any serious medical conditions that either puts him at extreme risk if he contracted the virus, or if the medical condition is one where the potential adverse reactions would outweigh any benefits of receiving the vaccine.93Alexis Connors, COVID Vaccine Approval for Young Children Could Come Soon: What if Co-Parents Disagree?, Boyd Collar Nolen Tuggle & Roddenberry, https://www.bcntrlaw.com/blog/co-parents-disagree-covid-19-vaccine/ (last visited May 13, 2022).

Of course, because the vaccine is a recent development, research on its benefits and long-term effects is not fully available.94Rachel Schraer, Vaccines: What we know about long-term safety now, BBC (Feb. 25, 2022), https://www.bbc.com/news/health-60468900. However, “scientists explain that [one year is] enough time for all but the rarest side effects to have emerged,” and indicate that based on what we know now, it is unlikely the vaccine will have any lingering, long-term, detrimental effects on the vast majority of the population who are vaccinated.95Id. With this, one family attorney and minor’s counsel in California reported that judges tend to follow the science and recommendations by the CDC and American Academy of Pediatrics, both of which firmly recommend that all children be vaccinated against the virus.96See Nguyen, supra note 87. Of course, absent any serious medical (or even religious) justifications for the child to not receive the vaccine, judges following the science will tend to rule in favor of parents wishing to vaccinate.97Id.

IV. Conclusion

Medical decision-making among divorced parents is yet another thing that COVID-19 wildly disrupted. “Before the pandemic, [a] family law attorney [reported that] she only had two or three vaccination-related custody disputes over the course of her 25-year career,” and now she sees at least one new case every week.98See Fowler, supra note 51. Because of the virus’s continued impact, and special effect on children, courts hearing these cases will heavily rely on physicians’ recommendations, scientific data, and the child’s medical history when determining whether the vaccine will be in his best interest.

Cover Photo by CDC on Unsplash


  • Baylee grew up in Erie, MI on the Lost Peninsula. She is an avid boater, dog mom, and Oakland Raiders fan. Passionate about disability rights and employment law, she chose to write her Comment on COVID-19's impact on the right to telework as a reasonable accommodation under the ADA. For her various blog posts, she wrote about taxing requirements for third-party payment applications, medical rationing during the pandemic, racism in the NFL, and genetic genealogy's impact on criminal suspects' constitutional rights. She hopes to become a litigator and educate people on forward-thinking business and employment practices. Read Baylee's published Student Comment, A COVID Silver Lining? How Telework May Be a Reasonable Accommodation After All, at the hyperlink below.


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