Back in October, when the FDA first authorized Pfizer’s COVID vaccine for children ages 5-11, millions of parents celebrated and scheduled the first available appointments they could find. (An estimated 4.8 million kids in this age group got their first shot in the first month that the vaccine was available.) But the announcement also forced an issue that became hotly contested in 2021 for many co-parents with shared custody: When they have opposing stances on vaccinating the kids, whose opinion prevails?

It’s just the latest in a long line of COVID-related challenges that co-parents have struggled with since the pandemic began. All along, family law attorneys have been getting calls from frustrated clients who are locked in battles with their exes over COVID protocols for their kids. Now that children 5 and older can be vaccinated, and with younger kids probably becoming eligible early in 2022, family law attorneys are hearing from parents on both sides of the vaccine debate. It’s a difficult situation without an easy solution. 

Whose opinion rules when co-parents disagree about vaccination? 

With disputes involving things like holiday schedules and school issues, separated parents can eventually find compromises. With COVID vaccines, there’s obviously no compromise. A child can either be vaccinated or not. So parents who share joint legal custody but disagree on vaccines are really stuck at an impasse. 

Whether or not the child wants to be vaccinated isn’t relevant in most states, including Massachusetts, where parental consent is required for anyone under 18 to get a COVID vaccine. It also doesn’t matter who has primary physical custody of the child. As long as co-parents have joint legal custody—and nothing in their custody agreement gives one parent more decision-making power than the other—they both have to agree on medical decisions. The parent who doesn’t want the child vaccinated will generally prevail because they have the power to withhold their permission. 

What can parents with shared custody do about vaccine disputes? 

Whenever a serious dispute like COVID response comes up, co-parents with shared legal custody first want to review their custody agreement and consult their family law attorney to make sure they know exactly what provisions and stipulations are included in their agreement. Assuming they have a fairly standard agreement giving them an equal say in medical decisions, however, most parents won’t find a solution there. 

Trying to work out the issue privately is the next step for co-parents who don’t want to involve the courts. If the vaccine-hesitant parent is willing to meet with the child’s pediatrician, they may feel more confident giving permission after asking their questions. Or, co-parents may be willing to discuss their concerns and frustrations together with an impartial third party like a therapist or private mediator. But considering how fiercely many people on both sides of the vaccine battle feel about the issue, there are plenty of cases where neither parent is going to budge. The parent who opposes the vaccine simply isn’t going to change their mind and give consent.

Ultimately, when parents with shared custody absolutely can’t agree on big decisions like vaccination, the only way to settle the debate is to get a judge to be the tiebreaker. The pro-vaccine parent will have to work with their family law attorney to file a motion and ask a judge to essentially overrule the other parent.

Taking a vaccine dispute to court isn’t going to yield a quick solution. The pandemic has created major delays in court systems around the country. Depending on the court and the judge’s calendar, parents are probably going to have to wait at least two months after filing a motion before getting a hearing scheduled. (One exception: If the pro-vaccine parent can make a case for why the child needs to be vaccinated urgently, like if they have a medical condition making them extremely vulnerable to COVID, the parent may be able to get an emergency hearing.)

For the parent who’s eager to get their child vaccinated, it’s going to be a long and impatient wait to get in front of the judge and plead their case. The relationship between the co-parents is probably going to be especially tense in the lead-up to and aftermath of a court hearing, too. It’s not an ideal scenario for anyone involved. But for parents who feel strongly about vaccination and can’t come to any consensus with their former partners, court intervention provides the only binding resolution. 

The family law attorneys at Sassoon Cymrot Law, LLC understand how fraught and delicate these kinds of disputes can be for parents with shared custody. We’re here to advise clients about all their options as they find the best possible solutions to their co-parenting challenges, including COVID disagreements. Contact us today.