Kids and Vaccinations – Which Parent Gets to Make the Decision?

After a divorce, both parents may not have the same decision-making rights they had during the marriage. A parent’s future right to make decisions on behalf of their child is subject to a family law court’s determination that it is in the best interests of the child. The judge will determine whether one or both parents are to make decisions regarding a minor child’s healthcare based on a number of factors. 

The decision of whether or not to vaccinate has long been a controversial issue between families and the government. Covid-19 and the government’s push to get vaccinated elicited a whole new level of controversy and resulted in strong opinions that divided members of the same families. It is not surprising that divorced parents sharing joint custody who would normally agree on a child’s healthcare were completely unable to agree on the vaccination decision. 

Parents and Child Custody

Custody defines the legal relationship between a parent and a child after a divorce. There are two types of custody to be decided in divorce proceedings. 

• Legal custody – determines whether one or both parents will make decisions regarding the welfare of a child 
• Physical custody – determines whether a child will live with one parent or can spend time living with each

One parent might be awarded both legal and physical custody (known as sole custody) but it is more likely that both parents will be given joint custodial rights to parent their children. 

When joint custody is decreed in Louisiana, the court will issue an implementation order that addresses both physical and legal custody. The order allocates the time periods a child is to spend with each parent in an attempt to ensure the child has frequent and continuing contact with both parents. 

The order will also typically designate the parent with whom a child is to primarily reside as the domiciliary parent. The domiciliary parent has the authority to make all decisions on behalf of a child unless the implementation order says otherwise. 

Factors Relevant to Custody Determinations

In Louisiana, divorcing parents are encouraged to establish a workable custody arrangement between themselves and then submit their agreement to the court for approval. A family law judge reviews a proposed custody arrangement using the best interests of the affected children as the standard of review.

The court must consider all relevant factors in determining what is in a child’s best interests. The Louisiana Civil Code identifies relevant factors to include the following:

• Potential for abuse
• Emotional ties between a parent and a child
• Ability of a parent to provide loving guidance and to educate and rear the child 
• Capability of a parent to provide for the basic material needs of the child
• Stability of a child’s living arrangements
• Moral fitness of a parent
• Parent’s criminal history
• Parent’s health
• Child’s ties to a school or community
• Child’s preferences if the child is deemed old enough to choose
• Parent’s interest in maintaining a relationship with a child
• Logistics of the child going back and forth between parents
• Parental involvement with a child before the divorce

Although formalized by court order, custody agreements are never set in stone. If circumstances change over time, custody orders can always be modified to further the best interests of the children.

Decision-Making Authority of a Non-Custodial or Non-Domiciliary Parent

A parent who has no custodial rights to a child has no authority to make any decisions on behalf of the child. A parent sharing joint custody with a domiciliary parent has only the decision-making authority given by the implementation order. If no specific authority is given in the order, then the non-domiciliary parent has the right to petition the court to review any major decisions made by the domiciliary parent. However, there is a presumption that the decisions made by the domiciliary parent are in the best interests of the child. 

What Happens When Parents Sharing Custody Don’t Agree?

Parents who have joint custody are expected to be able to agree on matters affecting the welfare of their children. So what happens when one parent strongly believes a child should be vaccinated and the other just as strongly believes the child should not be vaccinated? When parents absolutely cannot agree on a matter pertaining to a child’s welfare, court intervention is usually necessary. 

When the Covid-19 vaccine became available for children, many parents already had very strong feelings about getting vaccinated, and those strong feelings transferred over to the decision to get their children vaccinated. The inability to agree took many divorced parents back to court and into a contentiousness that they may have worked hard to overcome. 

According to NPR, one divorced couple from Pennsylvania who shared legal custody of their children had no choice but to have a judge decide which parent would make the decision regarding the Covid-19 vaccine. The mother was in favor of getting the vaccine. The father was very much against it. 

The divorce had been quite unpleasant but over the years the parents had established a relationship focused on benefiting the children. After a long delay and considerable cost, the mother was given the authority to make the vaccination decision. The vaccinations were ultimately given, but unfortunately, during the process, the children were put back in the middle of a conflict that threatened the harmony the family had established. 

How a Louisiana Court Might Decide the Vaccination Issue

If the decision to vaccinate must be made by both parents and the parents cannot agree, a Louisiana court would most likely decide the issue based on an analysis of what would be in the best interests of the child or children. 

The Louisiana Department of Health recommends Covid-19 vaccinations for all children aged six months and above, citing supportive research by the US Food & Drug Administration (FDA) and the Centers for Disease Prevention and Control (CDC). 

The decision to vaccinate children can be made by the parent with sole custody, the domiciliary parent, or by both parents if they have joint custody. If parents cannot agree, a court in Louisiana might very well find that the best interests of children within the state are promoted by receiving the vaccinations per state and federal recommendations. 

Please seek a qualified divorce attorney in Louisiana by calling at 504-780-8232 or contact us online.