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Alright, alright, alright……or Maybe not!

The CDC recently approved the Covid-19 vaccine for administration to children ages 5 to 11.  For many parents, this was the green light they had been waiting for to protect their children and start the journey towards a return to normalcy.  For other parents, the CDC’s announcement gave them pause.  Celebrity Matthew McConaughey, who is the parent of three children, age 9, 11, and 13, announced last week that he was not vaccinating his younger two children, stating he needed more information before he makes a decision on the subject. McConaughey and his wife and their oldest son are fully vaccinated, and McConaughey has made it clear that he is not “anti-vax.”  Some parents, even those who made sure their children had all their vaccinations as a baby and who routinely have their children vaccinated for the flu each year, are saying that they want more information before giving their young children the Covid-19 vaccine.  These types of decisions can be difficult ones for intact families to make, but think about the challenges parents face when they are involved in a high-conflict custody battle and have fundamentally different belief systems and approaches to parenting.  If these parents cannot agree if their child will be vaccinated, who makes the decision?  The answer:  It all depends on who has the legal right to make the decision. 

In North Carolina, the authority given to a parent to make those important decisions involving a child’s education, health, or general welfare is referred to as “legal custody.”  If the parents have joint legal custody, the parties generally share the right to make major decisions affecting the child’s life, and they must reach an agreement on the decisions.  If the parties have joint legal custody and cannot agree on a major decision for their child, then the parties must seek a ruling on the issue from a family court judge.  While a court is required to consider joint legal custody if a parent requests it, a court is not required to award joint legal custody to parents.  A court can award one party legal custody, or in some instances allocate certain decision-making authority between the parties.  For example, the court may give one parent legal custody to make all decisions if doing so serves the child’s best interest.  This is rare, and is often the last resort of a court when it is apparent that the parties simply cannot communicate with each other, or their belief systems are so different that joint decision-making is impossible.  The court can also allocate decision-making authority between the parents if the court finds that this is necessary and in the child’s best interest.  For example, the court may give one parent medical decision-making authority and the other parent educational decision-making authority.  While not as uncommon as a parent being awarded “sole” legal custody, this type of decision-making allocation is not typical.  Joint legal custody is far more common. 

How will a court decide whether a child is to receive the Covid-19 vaccination?  Just like any other custody-related issue–the court will look to what is the child’s best interest.  in reaching its decision, the court will consider the particular facts of the case, such as each parent’s reasons for or against vaccination, specific health risks of the child or the family, school or activity requirements, and most importantly—medical information from the child’s pediatrician.

So, what’s a parent to do?  If parents share joint legal custody of their child and they do not agree on whether to have the child immunized for Covid-19, neither parent should make a unilateral decision. If discussions with the child’s pediatrician do not help the parents reach consensus, then each parent should contact a family law attorney about what options are available to each of them to resolve the dispute.  

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