The coronavirus pandemic has drawn a new line of division for co-parenting divorced couples who must decide whether to get their children vaccinated against COVID-19.
Divorce lawyers and family attorneys said they’ve seen a drastic uptick in cases as the intricacies of custody agreements leave some parents stuck between a rock and a hard place, unable to reach an amicable decision and asking a judge to intervene instead.
“Children are obviously precious to their parents,” divorce attorney Donald C. Schiller told the legal news outlet Best Lawyers. “And some parents have a sense that they owe it to their children to fight for their beliefs. So, these things sometimes do get taken to issue.”
The division has taken a deeper hold ever since the Centers for Disease Control and Prevention recommended in November that the Pfizer vaccine be available to children ages 5-11.
Pfizer is currently the only vaccine available to children under 18, and kids 4 years old and under are still not eligible.
‘On the side of caution’
The debate surrounding child vaccinations among divorced parents predates the CDC’s recommendations. In the spring and fall of 2020, long before COVID-19 vaccines became widely available, researchers interviewed close to 300 divorced parents about unique stressors caused by the coronavirus pandemic and found differences in opinion regarding vaccines were already coming into play.
“I will almost certainly have to take him to court to be able to vaccinate her if a vaccine becomes available,” one woman told researchers about her ex and their daughter.
The results, published in the peer-reviewed academic journal Family Process in July, found differing views on science were a “key source of tension” among 16.6% of the divorced parents surveyed, who often referred to their former partners as “anti-vaxxers,” “anti-science” or “skeptical of Western medicine.”
That tension, once a hypothetical, has escalated since many children became eligible to receive the Pfizer vaccine.
A divorced dad in Lansing, Illinois, who is vaccinated told The Chicago Sun Times in August that he wasn’t comfortable letting his 13-year-old daughter get her own shot.
“I’m on the side of caution,” he said. “I’m like, ‘No thank you’ for the COVID vaccine, not knowing how it’s going to affect my child.”
His ex-wife later got their daughter vaccinated against his wishes — a decision he “couldn’t afford to fight... in court,” the Sun Times reported.
In a December edition of the newsletter “Men Yell At Me,” writer Lyz Lenz discussed vaccinating her children without telling her ex and what she learned after interviewing 50 mothers from differing political backgrounds grappling with the same decision.
One mother who has primary custody of her teenage son told Lenz she got him vaccinated without telling her ex-husband, who later died of COVID-19, she said. Another said she made an appointment to get her kids vaccinated but had to cancel when she told her ex about it and he “threatened to hire a lawyer to bring me to court.”
A step-parent who wants to vaccinate her step-son told Lenz she can’t because the decision lies with her partner’s ex-wife, her stepson’s biological mother.
“The ex has primary medical decision-making power, which didn’t seem like a big deal when they finalized their divorce in 2019,” she said. “Now, it’s led to a total upheaval of our day to day.”
An uptick in vaccination cases
The debate surrounding whether a child can be vaccinated against the coronavirus becomes thornier depending on what type of parenting agreement is in place.
Stephanie Judd, a lawyer with Judd & Fricke in Grand Rapids, Michigan, told Fox 17 that most divorced parents have joint custody of their kids. She said that means “neither parent has the right to unilaterally make any of those decisions on vaccinations, school enrollment, anything.”
If someone decides to ignore the parenting plan and get their child vaccinated without the other parent’s approval, Judd told Fox 17 they could lose their right to “participate in those decisions moving forward.”
There are also custody agreements in which one parent has the final say on medical decisions, HuffPost reported.
“That means if the other parent takes a child to be vaccinated without the approval of the parent who is authorized to make that decision, that parent could be held in contempt of court,” Elizabeth Green Lindsey, an Atlanta lawyer specializing in domestic relations and family law, told HuffPost.
Those parents face various penalties as a result, she said, including fines, jail time and attorney’s fees.
I'm seeing this over & over in vaccine discussion groups. One parent wants to get kids vaccinated; other is "wait and see" or absolutely against it. Having been through a contentious divorce, I feel so bad for the parents just trying to protect their kids & not able to do so. https://t.co/70FjZDf5aZ
— Dr. Tara C. Smith (@aetiology) December 8, 2021
Lawyers who work in divorce and family law say they’ve seen a marked increase in cases centering on vaccination disputes in recent months.
Judd said there’s been “a real surge of requests,” Fox 17 reported. While disagreements about medical issues aren’t uncommon, she said, “vaccinations are usually a pretty rare one.”
Before the pandemic, family law attorney Hillary Moonay told Today she only had two or three vaccination-related custody disputes over the course of her 25-year career. As of November, her firm was fielding those calls on a weekly basis, Today reported.
Going to court
Taking the dispute to court can be harrowing — and costly.
Bari Weinberger, a divorce attorney in New Jersey, said parents should try and work it out first “with input from the child’s pediatrician or fact sheets from the federal Centers for Disease Control and Prevention,” Best Lawyers reported.
If they can’t come to an agreement, recommendations from a pediatrician may be what a judge relies on to resolve the matter.
“That’s really what these medical decision-making processes hinge on,” Judd told Fox 17. “Our family bench here in Kent County is also not in a position to go against the advice of a reputable pediatrician or a medical provider in general.”
The judge typically won’t decide whether the child can get a COVID-19 vaccine, Moonay said, according to Today. Instead, they will determine which parent has the authority to make that decision.
“Judges are primarily relying upon the recommendations of the children’s pediatrician or family doctor to reach a decision,” she told the media outlet. “Additionally, judges are considering whether a child has had other childhood vaccines without the objection of either parent.”
Sometimes if one parent has sole custody and changes their stance on vaccinations, the court could classify it as “a substantial change in circumstances that places the child at risk,” Weinberger told Best Lawyers.
“(Courts) may consider a motion to modify legal custody from sole to shared or make other decisions,” she said.
If parents choose to take the dispute to court, it won’t be decided overnight — Judd told Fox 17 it could take anywhere from 30 to 45 days to resolve, while NPR reported the process sometimes takes up to a year. That type of litigation also costs upwards of $10,000 for each side, Connolly told NPR.
Alternative dispute resolution
For divorced couples looking to avoid that kind of drawn-out and costly process, experts recommend they try to hash it out together.
Dr. Meredith Shirey, a psychotherapist in New York City, said “tell me more” is one of the best phrases parents can use with one another during those conversations, Today reported.
“Because you’re not saying you’re going to agree or disagree, you’re just saying that you want to understand their perspective,” she told Today. “And often times when we fully understand someone’s perspective on why they want or do not want to do something, it opens up the door and it makes the solution a lot more clear. You have to hear each other first.”
If COVID-19 vaccinations are a contentious topic, divorce therapist Virginia Gilbert told HuffPost one parent shouldn’t try to persuade the other to let their children get it.
“This move will likely inflame a power struggle and cause the anti-vaxxer parent to dig in their heels further,” she said.
Gilbert said those couples should instead seek input from a third-party such as their child’s pediatrician or a court-appointed mediator.
Dr. Danielle Dunetz has sat down with divorced parents together to have that discussion — which she said can be awkward, NPR reported. But she said it gives her the opportunity to tell them the standard of care and what’s recommended for their child. Then it’s up to them to work it out.
Experts also recommend parents ask their children what they think about getting a COVID-19 vaccine.
“You can have a conversation around what your kids think about the vaccine, whether or not it’s something they talk to their friends about, and if it’s something they want to do,” Dr. Amanda Craig, a marriage and family therapist, told Today. “You can tell [them] it’s two shots over a period of a month and give them those types of details and feedback. They’re hearing about it at school, so it behooves parents to get involved.”
If the child does want to get the vaccine, Gilbert told HuffPost, the parent who agrees might encourage them to talk to the parent who opposes it themselves.
“This keeps kids out of dysfunctional triangle situations and teaches them how to self-advocate,” she said.