Veronica was in her garden in New England when she got the email ping from her ex-husband in early May. © The Washington Post illustration/iStock/The Washington Post illustration/iStock
“I started to have a panic attack,” says Veronica, who is not using her last name for privacy reasons. Her ex wanted a court to decide whether their 12-year-old daughter could be vaccinated against the coronavirus. The timing was terrible. “It was the day before I had her appointment scheduled,” she says.
Divorced parents who disagree about coronavirus vaccination are taking their fights to court. The tensions have been fueled by inconsistent mask rules, misinformation and reports of more children hospitalized for covid-19, the disease caused by the virus.
A former critical care nurse, Veronica knows what a stay in an intensive care unit is like, and she worries. When they were married, she and her ex agreed about vaccines. They jumped to vaccinate their daughter against the 2009 swine flu, for example. “He and I waited in the rain for hours to get her the swine flu vaccine when she was an infant because we were so concerned,” she says. Covid cases in kids are soaring. In Tennessee, most remain unmasked and unvaccinated.
Although Veronica has full power to make medical decisions for her daughter, her ex-husband’s challenge led to six weeks of stress and fear of expensive legal bills. At the hearing, he came armed with a prepared speech and a link to a PDF with 150 articles. Veronica countered with statements from the American Academy of Pediatrics, American Academy of Family Physicians, the Food and Drug Administration, the Centers for Disease Control and Prevention and a letter from their daughter’s pediatrician.
Hillary Moonay, a family lawyer in Pennsylvania, says she has seen a huge uptick in calls about the coronavirus vaccines. Her firm has argued several cases for parents. The first issue she clarifies is who has legal custody for medical decisions. “Unlike physical custody, where a lot of times you see one party having a much greater share of the physical custodial time, legal custody is generally 50-50,” Moonay says.
Shared legal custody means regardless of whom the child lives with, parents must agree on issues like education, religious upbringing and medical care. If the divorce is not finalized, Moonay discourages any parent from making a unilateral decision about coronavirus vaccination. If the parents have never married, they also generally have shared legal custody. However, if married parents do not have a pending divorce or custodial agreement, one of them can take a child to get vaccinated without express permission from the other parent.
Caroline, a physician in California who is using her middle name to protect her son and because her employer will not allow her to speak to the media, took her ex-husband to court so she could vaccinate their 12-year-old. Two months of online messaging had gone nowhere. “It became very clear that he wanted to wait to some future undetermined time,” she says.
Like 96 percent of doctors in the United States, Caroline is vaccinated against the coronavirus. “I wanted to be vaccinated as soon as possible,” she recalls. “Why wouldn’t we all get vaccinated? We were beating down the door to get our first shots.”
Her ex had previously agreed to all other childhood vaccines. Now he told her the coronavirus vaccines were experimental and dangerous, and that there were safer, more effective treatments. He also believed children would not get sick. Caroline knew these and other claims were false. Despite Caroline’s requests, he declined to talk to their pediatrician.
“It was a feeling of powerlessness, because we have to mutually agree on medical decisions,” she says. “Should my son contract covid, how could I live with myself?”
What’s required, and where
All 50 states and D.C. require some vaccines — such as for chickenpox, whooping cough and polio — for children to enter public school. Some states allow religious exemptions, others only medical exemptions. In 41 states, parents must always consent to a coronavirus vaccine for children under 18. The FDA in August gave full approval to the Pfizer vaccine for people 16 and older, after granting emergency use authorization in December. For children ages 12 to 15, an emergency use authorization has been in effect since May.
California will require vaccination for both public and private school students when there is full FDA approval. The state expects grades seven through 12 to meet the requirement in July. Individual school districts — in California (Los Angeles, Oakland, San Diego) and Virginia (Fairfax and Loudoun counties), for example — already have vaccine mandates for some students, with deadlines from October to January. But in much of the country, most families must still decide on their own. Marital status, terms of any decision-making agreement and recommendations from medical authorities determine who can decide whether to vaccinate if parents disagree.
Laws vary state to state. Jonathan Bates, a family lawyer in Dallas, says that in most Texas cases, “the parents each have the independent right to consent to noninvasive medical decisions.” But whether vaccination is invasive depends on whom you ask. “Unfortunately, we don’t have a lot of clarity right now,” he says. “It may not be uniform across the state, with as many counties as Texas has.” With that kind of ambiguity, “one parent may go get the child vaccinated, and then it’s done. You can’t put the toothpaste back in the tube,” Bates says.
However, if the divorce decree requires joint decision-making, then the parents must take the issue to court. Adam Morris, a family lawyer in the Houston area, predicts most judges would rule to vaccinate.
“The default is if it’s recommended that children be vaccinated, kids need to be vaccinated, unless there is a real autoimmune or some other issue with this child that is already diagnosed,” Morris says. He also doesn’t think a religious exemption claim by one parent would supersede the other parent’s right to ensure that the child is healthy.
What the courts consider
Jessica Huey is a family lawyer in the San Jose area. She has also seen a slew of coronavirus vaccination cases. In each one, she says, parents need to vet the vaccine information they plan to present to a judge. Expert medical journals are more compelling than a blog post. If her client does not want their child vaccinated, she asks if they have any threshold for accepting a vaccine. In court, meeting certain criteria generally sounds more reasonable than an outright refusal. Sample thresholds include full FDA approval or waiting a year to see if there are side effects. Whether parents accepted other childhood vaccines and if they used regular or modified vaccine schedules are also helpful evidence.“With most people, what we’re seeing is they’ve given all the other childhood vaccines, and they’re objecting to the covid vaccine,” Huey says.
Huey is also a minor’s counsel, a lawyer appointed to represent the best interests of a child. “On an issue as powerful as this, I think that the courts most likely are trying to be as consistent as possible and follow what precedent we have,” Huey says. “And that’s following the science — the recommendations from the American Academy of Pediatrics. So I think they’re trying to look at it as, ‘What would we do if this was polio or the other vaccines?’ and trying not to put the covid label on it.”
Veronica, the former nurse, prevailed in her dispute with her ex-husband. A judge ruled she had the right to choose to vaccinate their daughter. For Caroline, the doctor, a judge ruled she had the right to vaccinate but required both parents to see the pediatrician with their son.
The son had a voice, too. “The pediatrician had a discussion about the risks and benefits of having the vaccine, why the vaccine has become available, and what she recommended. She asked [the boy] if he had any questions and what his thoughts were,” Caroline recalls. “He said, ‘Well, yeah, I think it makes sense to have it.’ ” He was vaccinated right after the visit.
Caroline does not regret fighting to get her son vaccinated, despite the emotional and financial drain. “My son getting the shot in his arm was like cresting the top of Mount Everest and coming down on the other side,” she says. The subsequent emergence of the more infectious delta variant solidified her conviction that she had done the right thing.
Christine Nguyen is a physician and journalist who writes about parenting, caregiving and health. Follow her on Twitter @christinenguyen.