To Vax or Not to Vax

Weber Gallagher Simpson Stapleton Fires & Newby LLP

Pfizer is saying its COVID-19 vaccine works in kids ages 5-11. You’re divorced and have two children in that age group; both live primarily with you, but they spend a few nights of the week with their other parent. Like most people, your relationship with your ex has its ups and downs. Things have been going well recently and the children are in good spirits, so you’re reluctant to upset all of that. You want to get the kids vaccinated but your ex is not as receptive to the idea.

To cap things off, you’ve been reading about vaccination mandates and are afraid this will trickle down to schools in your area. You see a storm brewing with your ex over the vaccination issue and wonder what to do.

If you have a Pennsylvania child custody order, you should know about the concept of joint legal custody. That means that both parents need to be involved in important decisions, particularly those of the medical variety. Getting your children vaccinated falls within the realm of legal custody. If you don’t have any sort of custody order, assume that joint legal custody applies. So, what happens if you want to get the kids vaccinated and their other parent does not?

Unfortunately, this is a brand new issue and the courts have yet to weigh in. Suffice it to say, the answer will depend on a number of factors. Assume you have your lawyer file an emergency petition asking a judge or custody conciliator to order that both of your children get vaccinated. 

Answers to child custody questions like this are very fact specific. I tell clients that custody is not only fact specific, but judge specific as well, meaning that one judge may view the legal issues presented by a set of facts one way and another judge in the same courthouse may view the same sets of facts another way, resulting in entirely different decisions.

Judges are people and approach situations with their own sets of values and biases. Until we lawyers get a clear direction from the statewide appellate courts, one judge may clearly see the vaccination issue as one of common sense and immediately order the children vaccinated. Another judge may be more suspicious of the entire vaccination process and recognize the legal rights of the “non-vaxing” parent and deny the request.

Which judge is right, and how do we family law attorneys advise our clients? The answer to the first question is that until we have some directive from the statewide appellate courts, both judges are right. On the second question, family law attorneys need to have a sense of how their local judges will rule in a specific situation. While the attorneys handling family law cases at Weber Gallagher don’t profess to be able to predict with 100% accuracy what every judge will do in every situation, we do appear before judges and other decision-makers in the jurisdictions around southeastern Pennsylvania with sufficient regularity that we have a sense as to how each individual judge or other decision-makers will address a specific question. That does not guarantee success, but it does make for an intelligent conversation about your rights in custody situations and your chances of prevailing in the courts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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