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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.
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.
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I, recently, consulted with Darin after my wife filed for divorce. He was referred to me by a friend whom I very much trust. Darin was the antithesis of the first two attorneys I consulted (who were matter-of-fact and had very little empathy about the fact that I was struggling emotionally with what was transpiring). From the first few minutes of speaking with Darin, it was obvious that he was very knowledgeable and skilled with divorce and family matters. While that was most important to me, the thing that made the difference was his calming, logical, and empathetic approach. He took the time to listen and empathize with me. He took the time to understand what I wanted to achieve through this process and laid out my options. After the consultation, I knew he would be my attorney if I had to pull the trigger. I, ultimately, didn’t have to engage Darin’s services due to a reconciliation with my wife. I hope I never have to go through that process again, however, if I do, I know beyond a shadow of a doubt who I will be hiring to represent me…Darin R. Colburn. Darin, thank you for caring and being more than an attorney.
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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!
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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.
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