Can my former spouse / co-parent force me to get a COVID vaccine for our minor child? As the COVID vaccine becomes available for younger children, many are asking this question.
The short answer is that it’s possible. Judges may make orders and judgments covering a wide variety of issues, including whether your minor child will get the COVID vaccine. This is true even if one parent does not agree. The most likely way the court will do this is by awarding legal custody, either entirely or on a narrower issue–such as on medical issues or on the vaccine specifically–to one parent. This could be done through the judge’s initial order. Or, it could be done by modifying an existing order or judgment.
Let’s say, for example, legal custody is shared between co-parents. Let’s also say one parent doesn’t feel the child should get the vaccine. The impasse between to the two parents would mean the other parent could not move forward with the vaccination. A court, however, can modify the legal custody decision and award legal custody to the one co-parent who intends to vaccinate the child.
While the judge has the power to do this, will the court exercise this power? We don’t yet have data on this. However, our experience generally is that judges don’t tend to want to order medical decisions of any sort when such a decision can be avoided. This makes logical sense. After all, who wants to make medical decisions about someone else’s kids? Even judges would like to avoid this when possible. It’s likely because of this that Probate & Family Court Chief Justice John D. Casey issued this letter to parents on the final stages of the COVID 19 pandemic.
Legal Custody Overview
As Justice Casey wrote, “My office has recently provided judges with a summary of the law regarding shared legal custody and how a judge decides which parent makes these decisions if the parents do not agree. When these issues come before the Court, the judges will apply the law as it currently exists and make decisions that are in the best interests of the child(ren).” That’s an indication that the judges will be considering the vaccination power by modifying legal custody. It’s helpful, then, to understand how legal custody works and how it is changed.
How Legal Custody Works
There are two types of custody: physical and legal. Physical custody relates to where the child lives primarily (i.e. with which parent). Meanwhile, the award of legal custody determines which parent will have the legal authority to make important decisions on behalf of the minor child. Such decisions include those relating to the child’s education and religion. They also include medical decisions.
Sometimes, the court will award both legal and physical custody to one parent. However, a judge also has the power to split custody between the parents. Accordingly, two co-parents may share legal custody and / or physical custody.
The first step in assessing whether a co-parent can force the issue of the COVID vaccine for a minor child is to determine who has legal custody. The parent with sole legal custody has the final say on important decisions relating to the minor child. Medical matters fall squarely into this category. If only one co-parent has legal custody, whatever that parent decides about the vaccine for the child goes.
When co-parents share legal custody, however, they must agree on important decisions relating to the minor child. So, when making a medical decision having to do with the child, the co-parents must come to a conclusion together. This is true of COVID vaccines. If two co-parents share legal custody, they must both agree to the minor child getting a COVID vaccine.
Modification of Legal Custody
What if one co-parent wants the COVID vaccine for the minor child, but the other does not? One solution is to ask the court for a change in legal custody — known as a modification. Briefly stated, the co-parent seeking the modification could ask the court for sole legal custody, in general or as it relates to medical decisions only.
If the co-parents share legal custody, one can ask the court to grant him or her sole legal custody. If successful, that co-parent would then have all of the decision-making power.
Even if a co-parent does not have any legal custody, she or he can still ask the court to grant him or her sole legal custody. Essentially, this would switch sole legal custody from one co-parent to the other.
A change in legal custody can be done as a general matter. This means the co-parent would ask the court to grant her or him sole legal custody as it relates to all important decisions regarding the minor child. Alternatively, a co-parent can ask the court to change the legal custody award as it relates to medical decisions only. This means that only one co-parent, the one with sole legal custody regarding medical matters, can make important medical decisions on behalf of the minor child. With the latter, legal custody as it relates to education, religion, etc. would be unchanged.
Regardless of how one arrives here, if a co-parent has sole legal custody — as a general matter or as it relates to medical decisions — she or he will decide if the child will get the COVID vaccine. If the co-parent with sole legal custody does not want the COVID vaccine for the child, the child will not get it.
Child Custody Modification Standard
Getting the court to modify a prior legal custody decision is not necessarily easy. For a co-parent to succeed in a modification, the co-parent must prove two things to the court. First, the co-parent must show there has been a material and substantial change of circumstances since the last legal custody judgment or order. For example, one may ask whether the COVID pandemic has placed the child at increased risk for severe illness or death due to an underlying medical condition.
Second, the co-parent must show that a change of legal custody is in the child’s best interest. This standard is amorphous and the judge will consider many factors. Essentially, the judge will want to determine what is best for the child’s safety, mental and physical health, and general quality of life. A judge may seek input from other witnesses or experts to make this determination. One such individual may be a guardian ad litem.
A Note Regarding Co-Parents Who Never Married
For co-parents who never married, absent a court order, Massachusetts law gives sole legal custody to the unwed, biological mother. This means that, unless a court orders otherwise, a biological mother who never married the child’s father has the legal authority to make all medical decisions on behalf of the minor child. This includes the decision about whether to get a COVID vaccine for the minor child. For this to change, a co-parent would need to file a family law case and ask the court to make a decision regarding legal custody.
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