The COVID-19 Vaccine and Joint Legal Custody

In a lot of ways, the ongoing pandemic has highlighted a lot of differences between parents that weren’t issues before. We see people – normal, rational people, I should point out – take entirely different points of view about issues that really hadn’t come up before.

Some of the most common issues we’ve seen relate to school enrollment; whether to keep the kids in public school, enroll them in private school, or pull them out completely and pursue homeschooling.

There has always been an anti vaxx movement, but we’re seeing it even more with the COVID-19 vaccine. I’m not here to discuss the merits and demerits of the vaccine, or of its use in children – I’m not a scientist or a chemist – but only to point out that, for many parents, it has become an issue. Do we vaccinate our children against COVID-19 or not?

This article is designed to apply to moms in Virginia, no matter which side of the debate they fall on – the answer and procedure is the same.

To understand custody in Virginia, its important first to understand the difference between legal custody and physical custody.

Legal custody in Virginia refers to the right of parents to make three types of critical decisions on behalf of the child – non emergency medical care, religious upbringing, and education. A COVID-19 vaccine would fall under the ‘non emergency medical care’ prong of legal custody. ‘Non emergency’ is just defined as opposed to ‘emergency’ medical care, which would be, like, setting a broken arm or removing a ruptured appendix. (Again – not a scientist or doctor!)

Physical custody, on the other hand, refers to where the child spends his or her time. Physical custody can be primarily ordered to one party, shared between the two parents (though shared does not necessarily mean 50/50), or split, which refers to a situation where each child has a different custodial arrangement.
Physical custody doesn’t impact legal custody. To put in different words, what I mean is that just by virtue of having primary physical custody, that doesn’t mean that your ‘vote’ to vaccinate or not vaccinate (or to homeschool or not, or whatever the case may be) carries more weight than your other coparent. It doesn’t at all.

In fact, if legal custody is awarded jointly, which it almost always is, both parents have a vote which carries equal weight. So, if one says yes and one says no, you’re at an impasse.

It’s supposed to be this way. If one parent had tiebreaking authority, he or she could use that authority to force his or her viewpoint on all issues. It wouldn’t be a collaborative effort, ever. The other parent would never be able to challenge a viewpoint or point out a different way of thinking.  The court is attempting to make the coparenting process more democratic by giving the parents this equal power.  Of course, how successful – or not – that is really depends on the parties involved and their ability to have a civil conversation.

The way joint legal custody is designed is supposed to facilitate coparenting; to support each parent’s continuing involvement both with the other parent AND with the child.

The only way forward – if you’re really at an impasse and can’t reach an agreement – is to litigate the issue and let the judge decide. I won’t beat around the bush, though. To go to court on this issue means you’ll have a trial on the issue, and the judge’s opinion will be binding.

If you are in juvenile court, you could technically appeal the ruling to circuit court and have another trial on the issue – but that’s expensive and time consuming, plus the lower court’s ruling would stand until such time as your new trial was scheduled, not to mention that at some point there WILL be a final ruling.

It’s definitely a trial, though, and it’s a big deal. Whichever side you take, you’ll have to introduce evidence and witnesses (probably even expert witnesses, like doctors, since this is a medical issue) to prove your side of the case has more value than the other side.

It’s going to be harder, in general, to take the position that children shouldn’t be vaccinated than it would be to take the position that they should, but in either case you’ll need to be prepared to make as strong of an argument as possible.

There’s no question that this is a hot button issue for a lot of people, and that there are a lot of opinions circling around. There’s a lot of misinformation, concern about FDA approval, questions about testing (especially for children), and even risk factors will be relevant (is your child in school, in person? Otherwise high risk?). There’s a lot to unpack in this kind of a case, and you should definitely take it seriously.  It’s not going to be enough for either side to say, “Well, I just want to, okay?”  You need to prove your case.

There’s no way forward other than to sit down and discuss it until you reach an agreement or, ultimately, litigate and let the judge decide. In either case, neither of you has the tiebreaking vote on your own. Most people would prefer to avoid court if at all possible, but that’s also just not always possible.
Coparenting has a lot of challenges already, but COVID-19 has definitely exacerbated those challenges. Whether you’re pro or against vaccination for your children, you should definitely talk to an attorney if you and your child’s other parent are at odds.

For more information or to schedule a consultation, give our office a call at 757-425-5200.

 

 

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