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What Happens if My Ex Doesn’t Want Our Kids To Get the COVID Vaccine?

Posted by Elise Buie | Mar 02, 2021 | 0 Comments

As if co-parenting during a pandemic wasn't complicated enough, a lot of parents have a new worry to add to their plates: a widely controversial COVID-19 vaccine.

Though it is not available yet to everyone, including children under the age of 16, the potential exists that many schools will require students to receive the new COVID-19 vaccination before returning to class in the fall of 2021. In a recent interview, Dr. Fauci speculated that with clinical trials already underway, by September, children as young as first grade could be approved to receive the vaccine.

Inevitably, not every parent will agree whether getting the vaccine is the right decision for their child. When those parents are divorced and disagree, tensions can escalate even faster.

Indeed, in January, U.S. Supreme Court Associate Justice Sonia Sotomayor denied an application for injunctive relief from a group of upstate New York families. They argued that public schools' requirement for children to get vaccinated against COVID-19 before returning to school is a violation of their constitutional rights. Plaintiffs named the New York State Department of Health, state Health Commissioner Howard Zucker, and leaders in their school district as defendants in the original July 2020 lawsuit. 

The families, who seek online schooling for their children, and co-plaintiff, Children's Health Defense, requested a review of the lower court's ruling after U.S. District Judge Brenda Sannes of the Northern District of New York denied their petition for a preliminary injunction. Children's Health Defense is an organization begun by Robert F. Kennedy Jr., which claims vaccines can be unsafe.

Stating the regulations don't infringe on parents' rights to choose medical care on behalf of their children but, instead, condition children returning to school on receiving the vaccine, Judge Sannes cited that the U.S. Court of Appeals for the Second Circuit has already found attending public school is not a fundamental right.

An appeal remains pending in the Second Circuit for early January. No doubt states — and parents — around the U.S. will be watching.

In light of these overarching concerns, how, if you are co-parenting, have joint legal custody, and differ in your opinion about whether your shared child will receive the vaccination against COVID, should you proceed until then? Here are a few tips.

If you cannot agree, turn to your parenting plan for guidance.

When you have joint legal custody with your ex-spouse, it means both you and your ex make decisions regarding critical decisions in your child's life, including their health care, which would cover the administration of a COVID-19 vaccine. If your lawyer drafted your parenting plan well, it should include a clause directing you and your spouse to participate in some form of alternative dispute resolution to resolve any critical differences you may have.

The most apparent type of alternative dispute resolution here will be mediation, which can help during those times when you and your spouse disagree on a major decision concerning your child. Of course, the goal is to resolve this kind of dispute on your own first. But if you find you and your ex become stuck, mediation can help.

During mediation, a trained third-party, a mediator, will sit you and your ex down and try to hash out your arguments until you reach an agreement. You may each have a lawyer present to advocate on your behalf. At times, you may want to leave the mediation room to speak to your attorney privately, with or without the mediator present. The mediator may go back and forth between the rooms to facilitate your talks.

If you agree to have a binding mediation, the agreement you come to will be enforceable in a court. If you and your ex still cannot agree after mediation, you will have to proceed to the next step.

File a motion with the court.

Following mediation, if you and your ex-spouse still cannot agree whether your child should receive a COVID-19 vaccine, you or your ex-spouse can file a motion with the court in your area asking a judge to decide for you. If you are the parent who does not want your child inoculated, you will likely have to show that your child qualifies for an exemption either because of your family's religious beliefs according to which you are rearing your child or due to a medical reason. Based on the pending litigation mentioned above, it is unclear how compelling this argument will be in the coming year.

As it stands now, if you cannot show the court that there is a religious or medical reason why your child shouldn't receive the COVID-19 vaccine and the school requires it, the court will likely rule that your child must receive the vaccine, favoring the public health benefit. If at that point you fail to abide by the court's ruling, the court can hold you in contempt, and you can face dire consequences, including loss of custody or arrest.

Start the conversation now.

As with much concerning COVID and the ongoing pandemic, we are all in uncharted waters. In other words, hour to hour, week to week, and month to month, it is tough to predict what will be, including what schools will require seven or eight months from now, depending on where you live and the school your child attends.

Though you may want answers today, time may be on your side by allowing you to open up the discussion with your ex slowly and civilly. Often in parenting discussions with an ex, the best co-parenting happens in bite-sized pieces.

Because you are not under pressure to decide at this very moment, you have the chance to engage in micro discussions and then take a breather when they become too heated. The idea is to keep the lines of communication open so that when you and your co-parent must come to a final decision, both of you will understand how you each feel on the subject. You also don't want to put your co-parenting relationship in jeopardy regarding other, unrelated issues in the meantime.

A few last thoughts.

Even if you end up needing a mediator to facilitate your negotiations, starting and continuing the conversation over the coming months will allow for less mutual mystification between you and, instead, more information and understanding. Bottom line: as a co-parent, your most important goal should be to keep everyone, particularly your child, healthy — physically, mentally, and emotionally.

An excerpt from this article appeared in The New York Daily News on February 28, 2021.

About the Author

Elise Buie

Passionate, creative, problem-solving attorney who crafts solutions rather than obstacles. Elise spends significant time educating her clients on healthy communication skills. Elise also ensures that her clients make informed decisions by understanding the future emotional and financial implications of their decisions. Your family's future is our first priority. Elise teaches her clients new skills to empower them in the future as they adjust to the new family structure. While divorce ends a marriage, it is the beginning of your new, often times, more authentic life. Elise will help you begin that new life with new skills to handle any future challenges.

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