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The COVID-19 pandemic has affected nearly every aspect of people’s lives during the last couple of years. In addition to affecting how people live, work, and socialize, the pandemic has also brought new issues into the family law process.
Separated and divorced parents are struggling with issues concerning vaccinations, including how to handle child visitation with a parent who is unvaccinated and whether to agree to have their children vaccinated.
Increasingly, parents are taking their disputes to the family courts about the vaccine for children and parents. The Phoenix family law attorneys at Colburn Hintze Maletta have seen multiple disputes arise from parents that disagree on whether to vaccinate their children or not.
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Arizona Divorced Parents Disagree over Vaccine for Children
How the Covid-19 Vaccine for Children has Impacted Divorced Parents
Family law attorneys and courts have been forced to quickly adapt as more child custody and visitation disputes center around COVID-19 vaccinations. Since the law moves slowly, courts and attorneys have few precedents to help them determine how a case should be decided.
While parents were already wrestling with decisions about whether to vaccinate their children who were ages 5 to 17, the Centers for Disease Control (CDC) and the Food and Drug Administration (FDA) has expanded their eligibility criteria to include children as young as 6 months to 5 years as of June 18, 2022.
The availability of the Covid vaccine under 5 has resulted in even more disagreements between parents who share custody but disagree about whether their children should be vaccinated.
Some parents view the COVID vaccine as critical for protecting their children’s health. Others view the vaccine for kids with a great degree of skepticism and believe that it poses significant and unknown risks.
For Arizona parents who have separated or divorced but share children, the issues surrounding vaccinations have become increasingly heated. To understand the issue and how it might affect child custody disputes, it is important to first understand the different types of custody in Arizona.
Types of Child Custody and Decision-Making Authority
In Arizona, custody encompasses both legal decision-making authority and parenting time. Many people refer to these two types of custody as legal custody and physical custody. Within these two custody classifications are two types of decision-making, joint legal decision-making, and sole decision-making.
Legal decision-making authority is the power to make important decisions about a child’s medical care, education, religion, and other major issues affecting the welfare of the child.
Although each case is different, in Arizona, courts typically consider the award of joint legal decision-making authority and equal parenting time as a starting point absent clear and convincing evidence of parental fitness, logistical (i.e., long-distance), or other issues related to the best interest of the child.
Generally speaking, joint legal decision-making authority means that parents must confer with each other and reach a consensus to make important decisions about their children’s upbringing.
However, in some cases, one parent will be granted sole legal decision-making authority over one or more areas of their child’s upbringing. For example, one parent might be granted sole decision-making authority over a child’s education, medical care, or religion. In some cases, one parent will retain the authority to make decisions for their child in all aspects.
Children’s Vaccinations with Sole Decision-Making Authority
If one parent has sole decision-making authority, this means that they can make the decision whether to vaccinate their child without having to ask the other parent for permission. If the parent with sole decision-making authority also wants to vaccinate the child, the other parent can do little to stop them.
If the parent who does not have legal custody of the child wants the child to be vaccinated, but the parent with legal custody refuses, the parent who favors getting their child a COVID vaccine will have little recourse other than to file a petition with the court to modify the custody orders.
Since there is no legal precedent about how this type of dispute should be handled and the facts of each case are different, it is not always clear how a judge might rule. This is where it becomes critical to speak with Colburn Hintze Maletta.
On one hand, a parent could argue that it is in the best interest of the child to receive the vaccine to protect the child’s health. On the other hand, a parent could argue that the benefit of receiving the vaccine is not worth the potential risk.
To modify a custody order, the court will need to determine whether there has been a substantial change in circumstances since the original order was issued.
The parent could argue that the pandemic and disputes over vaccines could not have been anticipated at the time the original order was issued and that the other parent’s refusal to vaccinate the child amounts to a significant change in circumstances.
Your family law attorney at Colburn Hintze Maletta can review decisions made by the judge in other cases and provide advice about the way the court is likely to rule.
Covid Vaccine for Children Under 5 and Shared Decision-Making
The issue of whether a child should be vaccinated against COVID-19 becomes more difficult when parents share decision-making and disagree. Since the parents must confer with each other before making medical decisions for their child, it can be difficult when one parent absolutely refuses to have their children vaccinated against the novel coronavirus.
In this type of situation, either parent might file a motion in court requesting a court order for the child to be vaccinated or to prevent the other parent from getting the COVID vaccine for a child under 5, under 12, or under 17. In practice, many courts have favored vaccines as being in the best interest of the children.
If the issue is brought before the court and the court issues a valid order that requires the children to be vaccinated, the parent that is opposed to the vaccine will have no choice but to comply. Conversely, in the absence of an order expressly authorizing the children to be vaccinated, medical providers may deny the proponent’s parent’s request to have the children vaccinated.
Moreover, even if the medical provider allows the vaccination without consent from both parents, the parent that unilaterally vaccinated the children may be subject to sanctions for violating the court’s legal decision-making authority orders.
Some parents choose to go to mediation to try to reach an agreement. A mediator can try to facilitate an agreement between the parents about vaccinating their child. For example, the hesitant parent might agree to allow their child to be vaccinated after waiting for 6 months to see how other children are tolerating it.
If an agreement is not reached in mediation, the parents will have to take the dispute to court and litigate it. They will then be leaving the decision about their child’s medical care in the hands of a judge who does not know either them or their child. The parents will need to present compelling evidence for why they have the positions they do about COVID vaccines for children.
For example, a parent who wants to get the child vaccinated could present evidence from the CDC showing that vaccines have been found to be safe for children as young as 6 months or that the child is immunocompromised and faces a greater danger of serious illness if infected. The other parent could present evidence that they have a sincerely held religious belief against vaccines.
Ultimately, the judge will issue a decision according to what the judge believes is in the best interests of the child.
The COVID Vaccine for Children
While it was initially believed that young children didn’t contract and spread COVID-19, that has been proven false.
According to the CDC, children and teenagers can and do contract the virus and spread it to others, and some have become very ill and, in rare cases, have died.
The CDC recommends that all children ages 6 six months and older receive vaccinations against COVID-19. Children who receive the Pfizer vaccine receive a second dose three weeks after the first one. Once the child has received the vaccine, they need to wait for 15 minutes before they leave so that they can be watched for potential reactions.
While many people report side effects from the vaccine, they are generally mild and include swelling, redness, and pain at the injection site. Some people also report experiencing flu-like symptoms that are mild and last only a couple of days.
Have Concerns About the Vaccine and Your Child? Speak to Colburn Hintze Maletta Today
If you and your child’s other parent are in dispute over whether to vaccinate your child against COVID-19, you should talk to the attorneys at Colburn Hintze Maletta immediately as this is a serious matter.
We will review your situation and explain your legal options. Contact us today to schedule a consultation by calling (602) 825-2500.
Attorney Darin Colburn has experienced first-hand just how difficult going through a family law matter such as divorce is when his parents divorced when he was 6 years old. Twenty years later, he has devoted his entire legal career to helping those facing similar issues. Darin attended the University of Arizona and graduated Cum Laude from the Eller College of Management. Darin is an experienced trial attorney that excels in high-net-worth divorce, complex business valuations, and messy child custody disputes.
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“I was found NOT GUILTY. Dave won the trial for me.”
Dave stayed with me while he pushed back and forth with Covid-19 and the delays with court. Once cited, the state basically decides that you’re guilty through the automatic suspension of your drivers license. Dave immediately took care of that problem and I never lost the privilege of driving. Dave took notes like crazy and was upfront about our uphill battle. I was also well aware that the plea deal that was given to us, was unacceptable and through Dave’s knowledge and experience I had put my trust in him to guide me to make the right decision on how to proceed. With Dave’s guidance I had decided that we needed to fight for something better than what the prosecutor was offering and Dave was 100 percent behind me on that decision. We knew the risks, be we also knew we had very little to lose based on the prosecutions stance. We decided to go to trial… Watching the prosecution and then watching Dave was night and day!! It was clear to the jury that the prosecution didn’t have their facts straight and were not addressing the facts that they could not address…There was a lot at stake for my personal life and my work life. I was found NOT GUILTY. Dave won the trial for me.
Gregory - AVVO Review
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I had the opportunity to work with Darin during a very troublesome time in my life. As a family attorney, I found him to be very professional, very empathetic, and very responsive to all the issues I faced. I would recommend him to anyone without a second thought. Thank you, Darin!
Gary C. - Google Review
“Because of Darin I got my daughter back”
Before I hired Darin I went through a total of 3 different attorneys in two different states fighting a jurisdiction battle, when my daughter was taken to a different state. It was a very difficult decision to switch attorneys at one of the most difficult, time sensitive and important times in my case, but I’m very glad I did. Upon receiving my file from previous attorneys Darin came very familiar with my case quickly. Like other people have explained he took the time to lay everything out and explain how the process was going to proceed and what to expect and continued to do this as new issues arrived. He is also very quick at responding to emails and phone calls. My case was getting close to trial as told by my previous attorneys, I did not want to go to trial as I know this is very costly (most attorneys will convince you that you need to.) Darin knew my situation, fought for what was right and got the results I wanted while avoiding a costly trial. He is extremely knowledgeable in the Child Support Guidelines as well. Because of Darin I got my daughter back. I would highly recommend him and would hire again for any future issues. Thanks Darin!
Chris - AVVO Review
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Darin helped me with a complex family law issue involving ownership of multiple businesses and other assets. He was able to structure a win-win that wasn’t only better than I thought was possible but that protected the business I had built. Above and beyond that, he did it with great customer service and character – which really matters to me. This was the best possible outcome, great price, and fast.
David R. - Google Review
“I still have a clean record to this day.”
One piece of advice for people who are charged with anything in Arizona is to hire a great lawyer because the state does not care if you’re innocent or not. The Arizona legal system will try to ruin your life. A couple of years ago I was the victim of an antisemitic hate crime when a guy named Billy, who had a history of drug and alcohol issues and was thrown out of the Navy for being violent, decided to attack me after drinking all day in Old Town (Sunday funday) over a pointless argument over whether it’s better to buy homes immediately post-recession or during the 10th year of a bull market run which was his argument. The disagreement led to Billy making several anti-semitic comments and assaulting me, which led to me beating up billy. Billy and his friends then went to the police and lied to try to get me thrown in jail for months for assault while getting 10s of thousands of dollars in restitution in the process. I hired David Maletta. We went to court and destroyed Billy and his best friend/roommate Taylor who were trying to extort me and ruin my life. In Arizona there is a 3.5% chance you’ll get all charges dropped because of how hard the state is on crime but we pulled it off and I still have a clean record to this day.
MJ Walsh - Google Review
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I had an incident and was given the catch-all charge. There wasn’t really anything I could do by myself to get out of it. Tim was absolutely amazing and worked diligently to ensure that I would have the best possible outcome from my case. Which he successfully achieved! As of right now, I am on the path to having my case fully dismissed. A couple of things that really helped me through this process was that Tim did an amazing job at answering my questions. He was available almost anytime and would respond promptly when he got my emails. He was also very approachable and comforting to be around while we had in person meetings and especially when I was at the court house. I would trust him and the company he works for with any other cases in the future, and as of right now, they will be my first choice if I need a lawyer in the future.
Dylan - AVVO Review
“David was relentless in his pursuit of my son’s innocence”
We retained David Maletta to represent our son after being cited for what can only be described as a momentary lapse of reason. David was extremely knowledgeable, was able to clearly communicate very complicated concepts, and was relentless in his pursuit of my son’s innocence. He had strong relationships with the prosecuting attorney and respect of the judge, which ultimately resulted in my son learning a really hard lesson with limited consequences (traffic school and writing an essay to the judge on the physics of driving 130MPH and what happens if that goes badly). I have already sent all of my friends with teenage and 20 year old kids his contact information for when they inevitably get that call. David completely exceeded all of our expectations and we could not recommend him any stronger. Thank you for everything.
Shawn H. - Google Review
“Responsive, sympathetic, professional, patient, and kind.”
On one of the worst and most surreal nights of my life (do not EVER get a DUI people!) I was lucky enough to find my way to Tim Hintze. Being in Phoenix for the Thanksgiving holiday from out of town, and after spending the evening with family, I ended up spending the night in jail.
Tim turned one of the worst experiences in my life into “it could have been so much worse!” Working with him from a different state, he covered the bases & paperwork, showed up for me in court, gave me numerous connections to muck my way through the system, and held my hand the whole way.
I cannot imagine how much worse this experience could have been, and thanks to Tim, I didn’t need to. He was responsive, sympathetic, professional, patient, and kind throughout the long process, drawn out by many months due to Covid.
Keep Tim’s number handy and in your contacts in the event you are ever in the sorry position to need a DUI lawyer!
Holly Weber - Google Review
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I honestly just want to let it be known to any and everyone looking for an attorney on a case. Whether it be DUI, possession, or your every day to day traffic violations where you need representation attorney Tim Hintze is your man. You have to respect a man that listens to every request that you make on a case and he gets in there and gets it done. Tim has my respect as an attorney and being a well-rounded representer. From him being honest on the possibility and options for your case to him being easy to work and communicate with via over the phone or face to face Mr. Hintze is working it out.
Ben - AVVO Review
“There is NOBODY I would rather have defending me than David”
I hired David Maletta and it was the best decision of my life. His knowledge, genuine interest, overall attitude, and ability to connect with people is incomparable. I could talk about all of this at length. I COULD do all of that, but that wouldn’t do David justice. He first and foremost demonstrates his interest and genuine care for his client. Being in uncharted territory with a criminal charge and nowhere to turn, David’s presence and personality put all nerves at ease. I went through a jury trial with David beside me. The trial ran for 3 days and I spent a significant amount of time with David one-on-one. During this stressful time, he wanted to hear my input and thoughts on everything. David was incredible from the first day I met him. Not only is he a great attorney, but he is also a great person who cares about people and finding justice for his clients. He connects to the human side of people. I can’t put into words how much David cares about the individual in a case. When it comes to the courtroom, there is NOBODY I would rather have defending me than David.
Jacob - AVVO Review
“I would give them more stars, but the option is not there”
Best divorce lawyers in Arizona, hands down. Timothy Hintz handled my divorce, and as a father, I have my son and our house. I would give them more stars, but the option is not there. His paralegal Jennifer Bone is extremely competent, and the whole team is very friendly. Took a big weight off, having them behind me.
Joseph A. - Google Review
“Nothing but good things to say about my experience.”
I have nothing but good things to say about my experience working with David Maletta. I was in a very high-stress situation facing a pending DUI charge. He doesn’t know this, but I actually interviewed 5 potential lawyers, and he was the most optimistic of all of them. He took over and handled everything, and now I don’t have to live with a DUI. Thank you so much for everything! Highly recommend them to anyone looking for legal help.