On December 11, 2020, children ages 16 and up became eligible for the Pfizer-BioNTech COVID-19 Vaccine. Approval for ages 12 to 15 followed on May 10, 2021. It is projected that approval for vaccinating kids ages 5 to 11 could happen as soon as October 26th.1

While the decision to vaccinate children may not be a new issue, the stakes are potentially higher than any other time in modern history, as some parents consider the vaccine a necessity to mitigate the spread of COVID-19, while others think the unknowns of the vaccine pose too big of a risk to their children’s long-term health.

Keep it Amicable

Regardless of marital status, including married couples and those with a divorce decree, some parents are going to war with each other over who gets to make the decision to vaccinate or not. In most cases of divorced couples, neither parent may unilaterally sign off on vaccinating their child without obtaining the other’s consent, as generally Parenting Plans and Final Judgments provide for Shared Parental Decision Making. When parents cannot agree, they must go to the court for guidance. However, many parents cannot afford a costly battle, or they do not want a judge who does not know them or their child to decide this important family matter.

We do not have specific precedent on how the courts will rule on this issue and by the time the cases get to the Court of Appeals, it may be moot if the threat of the pandemic is over. For this reason, parents should work hard to resolve the matter on their own or in mediation. When undertaking the conversation at home, parents should do their best to be educated so they can actively support their own opinion. Doing ‘homework’ can include reading medical summaries from respected sources and consulting with multiple pediatricians in their area.

Elizabeth Cohen, Ph.D., a clinical psychologist in private practice in New York City and author of Light on the Other Side of Divorce,2 has this advice for parents to help them jointly arrive at a decision:

1: Separate your feelings for your ex from your co-parenting responsibilities

“…your goal should be to rethink the entire way you’re talking to your ex. Ask yourself, ‘If I was negotiating with a business partner, how would I approach this situation?’ You have to put (those) feelings aside for the sake of resolving this.”

2: Stay factual

“Avoid saying things like, ‘You never cared about the kids’ medical stuff before, why do you care now?’ Instead, be very clear about why you feel like this is the right decision. Again, explain it as if you were talking to a neutral person and take any emotional language out of the discussion.”

3: Respect your ex’s point of view

“It can be very challenging, but it’s very important to come from a place of respect for the other person’s opinion. Remember, your ex feels just as strongly about this as you do. Ask him or her to explain how they came to their decision. Remember: Your underlying anger and resentment towards this person has nothing to do with whether your child should get the vaccine or not.”

The Big Unknown

It is conceivable that a record number of parents will find themselves at an impasse and put the “to vax or not vax” decision in the hands of a judge. If your client insists on going to court, some of the judge’s considerations may include:

  • Whether or not the child has been fully vaccinated prior to the COVID-19 vaccine
  • Special circumstances, such as if the child is immunocompromised
  • Recommendations from the family’s pediatrician and/or experts in the field

How these cases will be decided is not clear. Chantelle Porter, a family law attorney and guardian ad litem, says, “Although the courts may see an influx of cases asking for decisions on child COVID-19 vaccinations, (I believe) the majority of cases will be whittled down to disputes with special circumstances. The cases you’re going to see will be more of those outlier cases, where the family might have some unique circumstances that need to be looked into.”3

Mediation Can Break the Deadlock

When a couple simply cannot agree, they will be ordered to go to mediation before going to court. Although this is a ‘hot-button’ issue, mediation is an opportunity to brainstorm and come up with creative solutions. Here are a few mediation-type ideas and suggestions that may help your client resolve the vaccination issue without having to surrender to a decision made by a judge:

  • Establish guidelines for when the child can get vaccinated. For example, agree to a date in the future based on X-amount of time having passed since the vaccine was released for their child’s age group, or once a certain number of kids in their age group have been vaccinated.
  • Agree to wait a certain period of time to see if a new variant has emerged and is spreading, or if the infection rates have been significantly reduced and indicators are children no longer need to be vaccinated.
  • Some parents may be more comfortable with the Johnson & Johnson one-shot vaccine and agree to wait for FDA approval for this particular vaccine.

When you need help through the mediation process, you can count on my 18 years of litigation experience and six years of exclusive divorce mediation to find out-of-the-box solutions to settle the dispute amicably and expeditiously.

A Bit of History

Although there is not universal consensus regarding where the virus originated, the 1918 Influenza Pandemic was a devastating force that spread worldwide during 1918–1919. In the United States, it was first identified in the Spring of 1918.

It is estimated that about 500 million people or one-third of the world’s population became infected with this virus. The number of deaths was estimated to be at least 50 million worldwide with about 675,000 occurring in the United States. Mortality was high in people younger than five years old, 20 to 40 years old, and 65 years and older. With no vaccine against influenza infection and no antibiotics to treat secondary bacterial infections that can be associated with influenza infections, control efforts worldwide were limited to non-pharmaceutical interventions such as isolation, quarantine, good personal hygiene, use of disinfectants, and limitations of public gatherings.4

Red Cross volunteers, Boston, MA, 1918