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Vaccinating the Kids

Posted August 23rd, 2021 | by The Red Headed Lawyer

Divorce and Vaccinations – How to Agree if There’s No Agreement

Believe it or not, August is here and kids are heading back to school. Unfortunately, so is COVID. Everywhere we turn there are new debates and mandates about the various COVID-19 vaccines. What began as a blessing and a choice is fast becoming a requirement. Industries including healthcare, government employment, hospitality and professional sports are requiring proof of vaccination for continued employment or participation. The rules of vaccination are changing faster than the law, and divorced parents can’t keep up. This can cause serious family problems.

Is a Public School Mandate Coming?

To date, the COVID vaccine has not been mandated for attending public school in Texas. However, in the past, school attendance has been conditional on being vaccinated for other diseases. After decades of MMR and TB vaccines (among others), this practice has become accepted as part of our culture. With this in mind, a new, nationwide COVID vaccine mandate would simplify the lives of parents – the choice would be public school or home school?

Are Vaccinations Considered Invasive Procedures?

This is becoming an important question. The State of Texas has not defined “invasive procedure” in the Texas Family Code, nor has it been defined by the courts. Within a Texas custody order, a parent may have been granted the right to consent to medical, dental and surgical treatment including “invasive procedures” for his/her children. Or a parent may have the right to make educational decisions. But even if a parent has both of these rights, forcing a child to get vaccinated (over the objection of the other) is still without precedent.

Mom vs. Dad – Differences of Opinion

As with other types of vaccinations, parents often have differing opinions as to their necessity. Add this to the uncertainty over the definition of invasive procedure, and you can see how a legal morass could develop. However, if vaccinations are ultimately defined as invasive procedures, any Texas parent with the right to make medical decisions for their children would have the final say. Until that time, the situation is ripe for conflict. It is also possible that state (or even school district) mandates may be at odds with existing Federal law. States might prohibit mandates and schools might endorse them, putting parents right back where we started – unable to agree on a course of action.

Mom and Dad – Communication

With so much up in the air, the sooner the vaccination conversation begins between divorced couples, the better. Although often difficult, it is important to remain open, honest and calm in having this discussion. It’s not a war, but an exchange of ideas. Everything needs to be on the table, right down to which vaccine (if any) should be considered. Never assume it is okay to vaccinate without consulting the other. This is a conflict that should be avoided. In some cases, events might force one’s hand. If a parent wants to take a child overseas, a vaccination might be unavoidable.

Litigation – Not Your Best Option

For all the reasons discussed, you can see how avoiding legal conflict may be your best option when considering whether or not to vaccinate a child. The law is still evolving on this matter, and even if there is passionate, irrevocable disagreement among parents, courts are backlogged because of (you guessed it) COVID-19.

This is a complicated topic for a number of reasons. If you have any questions on this or any other family law issue, feel free to contact Essex Law and schedule a virtual consultation.