Co-Parenting COVID Vaccination challenges- Who makes the decision???

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As of November 2, 2021, the U.S. Food and Drug Administration and Centers for Disease Control and Prevention have approved the Pfizer-BioNTech COVID-19 vaccine for children aged 5 and older.[1]

For parents with joint decision-making responsibility who disagree on the vaccination of their children, there are several options to pursue:

1. Modification of decision-making

One option for parents is to file a motion with the court to modify decision-making responsibility, and specifically, limit that modification to medical decisions or vaccines.[2]^,[3] Courts may modify decision-making responsibility for several reasons, and one of those reasons is known as “endangerment.” The endangerment standard explicitly allows the court to modify decision-making responsibility if retention of the current allocation would endanger the child’s physical health, or the harm likely to be caused by a change in decision-making responsibility is outweighed by the advantage to the child. [4]

The application of the endangerment standard to vaccinations was recently discussed by the Colorado Court of Appeals in January 2021. In the case In re Marriage of Crouch, Mother and Father disagreed on whether their children should be vaccinated. Mother had opposed vaccinating the children in part because it conflicted with her religious beliefs. The Court ultimately held that the court should consider Mother’s constitutional rights in determining reallocation of decision-making, but that constitutional right was not entitled to heightened scrutiny or deference. Rather, courts only need to consider the endangerment standard when determining whether to modify decision-making responsibilities in relation to the vaccination of children.[5]

2. Asking the court to decide

Parents may also ask the court to make the decision for them. The Colorado Court of Appeals recently affirmed the courts’ ability to make a binding decision for parents when they hold joint decision-making responsibility and cannot agree on a decision.[6] In that case, the trial court resolved a school choice dispute between the parties and chose which high school the child would attend.[7] While there have not been any recorded cases in Colorado where a court has decided on a disagreement on vaccinations specifically, courts in a few other states have made this decision in place of the parents.

In Michigan, the court of appeals recently held that the trial court must step in and resolve a dispute on vaccination using the best interest of the children factors set forth in Michigan statute.[8] The court of appeals in Minnesota made a similar finding when the parents did not agree on the issue of vaccinations. There, the court of appeals ordered the trial court to determine the dispute by making findings based upon the best interests of the children.[9]

As these decisions were just handed down in 2021, the substantive outcome of the cases on remand are unknown. However, the trial court in Nieber had previously held the “benefits of getting the children vaccinated far outweighs any potential risks of getting the vaccines.”[10] And the appellate court in Smith noted “everyone involved in the child’s life and in this case other than the father agreed that the child should be vaccinated.”[11] These statements may provide some insight as to how the trial courts in these other states will ultimately rule on the issue.

3. Appointing a third-party decision-maker

Outside of asking a judge to decide on disagreements regarding vaccinations, Colorado law also provides disagreeing parties with other resources to come to a decision. If both parents consent, a decision-maker or an arbitrator may be appointed by the court to issue a binding decision.[12] One benefit of delegating authority to a neutral third-party is the ability to obtain a quick decision. Both options have fewer procedural hurdles and are therefore usually a more cost-effective way of coming to a resolution with the other party.

However, there are some cons to choosing either of these options, one major one being that judgments of decision-makers and arbitrators can be difficult to appeal. In addition, a decision-maker or arbitrator may not be comfortable deciding such an issue. In In re Marriage of Crouch, the Colorado Court of Appeals noted that the parties had agreed to the appointment of a parenting coordinator/decision-maker (PCDM), but the PCDM “declined to render a decision, stating that the issue was outside of her expertise and likened rendering a decision on it to ‘practicing medicine without a license.”[13]