Parents of school children and teens are having to make some tough decisions about vaccines and mask usage in response to the COVID-19 pandemic. When co-parents don’t agree, it can have severe consequences for their children and can leave you wondering who controls your kids’ COVID vaccine choices.
COVID-19 Vaccinations are a Legal Custody Decision
The Pfizer vaccine has been approved for teens and children ages 12 and up. Testing on children under 12 is ongoing. Recent polls show that parents are split over the issue. University of Michigan Health C.S. Mott Children’s Hospital’s co-director Sarah Clark, M.P.H., says:
“The COVID-19 pandemic has prompted parents to think about their child’s health and safety in new ways, from mask-wearing to attending in-person events. As COVID vaccine authorizations expand to younger age groups, parents are also considering whether and when their child should get vaccinated.”
That could create co-parenting problems if parents disagree on whether to vaccinate their children.
Choosing whether and when to vaccinate a child is a legal custody decision. In Michigan, legal custody controls major decisions about a child’s health, education, or religion. That means in cases where your child custody order awards one parent sole legal custody, it will be up to that parent whether to give your kids the COVID-19 vaccine. However, in most cases, Michigan judges award parents joint legal custody. That means you and your co-parent will be expected to cooperate to make a decision about the vaccine based on the best interests of your children.
Michigan Schools Wrestle with Health and Safety as Kids Return to the Classroom
Vaccines aren’t the only health precaution available to protect kids from the coronavirus. As schools have opened, many counties have adopted mask mandates for the classroom. Last year, the federal Sixth Circuit held that Michigan’s mask mandate was constitutional, even in the case of Catholic schools. Still, for the 2021 – 2022 school year, administrative health officers in Ottawa and Kent counties urged, but did not require, schools to issue mask mandates.
At the same time, children whose parents choose to send them to schools without masks may face risks of a different kind. Kids from mask-free households may be singled out and bullied because they – or their parents – have gone against the recommendations from schools and local and national health departments.
Is Mask Usage a Routine Decision During Parenting Time?
While the law is clear about parents’ choice to vaccinate, the issue of mask usage is less obvious. The legal custody rules above only apply to “major decisions” in a child’s life. Day-to-day health and wellness decisions fall to the parent exercising parenting time. This “routine decision-making” generally is not controlled by the courts unless it creates an unreasonable risk of harm to the child.
But is masking, or not masking, creating that unreasonable risk? The courts haven’t given any direct guidance on this, though at least three unpublished decisions in the last year have included parents’ pandemic safety responses as a factor in deciding whether to modify custody. Still, the decision not to require kids to wear masks during their parenting time will likely not be enough on its own to take your co-parent back to court.
What to Do if You and Your Co-Parent Can’t Agree on the COVID Vaccine
If you and your co-parent disagree over whether your teen should be vaccinated or whether to pull a child from a school with a mask mandate, you can file a motion to ask the court to decide the issue on your behalf. However, this may be challenging if you are opposed to the vaccine. Courts generally resolve legal custody disputes based on science and what experts testify is in the best interests of the child, rather than favoring one parent’s religious or philosophical preferences over the other.
The biggest challenge to co-parents who can’t agree on their kids’ COVID vaccine is time. Courts are still backed up after last year’s shutdowns. That’s why, at Thacker Sleight, we recommend attempting to resolve your vaccination dispute through the collaborative process, before making your case for vaccination in court. Our experienced family law attorneys can help you with either formal or informal dispute resolution. We provide our clients exclusive, highly professional service that is also personal and unique to their situation. If you need help with a family law matter, contact us at 616.888.3810 to schedule a consultation.