Given that the Pfizer COVID-19 vaccine has now been approved by the Food and Drug Administration for children above the age of 12, many divorced individuals with children in this age range may be wondering: What do I do if my co-parent and I disagree about whether our child should receive a COVID-19 vaccine? The answer to that question depends largely upon whether you have shared legal custody with your co-parent. Shared legal custody in Massachusetts describes the situation where both parents share responsibility for making major decisions for their child, such as decisions about the child’s health, education, and religion. Absent a sole legal custody arrangement, where only one parent alone is granted this authority, co-parents typically must agree about these types of decisions. If two parties with shared legal custody cannot agree on whether their child should receive the COVID-19 vaccine, then one option is for the parents to take the issue to the Probate and Family Court and ask the judge to decide for them. While a judge will not directly order a child to be vaccinated against COVID-19, they might choose to award legal custody on the issue of vaccination to the parent who wants the COVID-19 vaccine administered, essentially allowing that parent to make the decision to vaccinate the child over the other parent’s objection (or vice versa).
In making this decision, the judge will apply a “best interests of the child” standard. Under this broad standard, a judge would consider whether the child has any significant health risks, both parents’ reasoning for their positions about the vaccine, and whether the child is able to participate in school and other activities while unvaccinated. The legal landscape surrounding this issue will evolve considerably over the coming months and years as the COVID-19 vaccine becomes mandatory to access more and more settings. For example, California recently became the first state to mandate the COVID-19 vaccine for public school children over the age of 12. If a similar mandate is implemented in Massachusetts in the future, then it is likely that a judge facing this question would conclude that it would be in the best interests of a child over the age of 12 to get the COVID-19 vaccine such that they could attend public school. As with all aspects of the COVID-19 pandemic thus far, we will have to wait and see how the courts deal with this issue in real time as the public health situation evolves, as vaccines become approved for even younger age groups, and as new studies on vaccine safety and efficacy continue to be published daily.