Courts, Covid Vaccinations & Parents That Disagree
Decisions about a child’s health care and treatment are often difficult even when the parents are still married and on the same page in making decisions. However, when separated parents are at odds on whether their children should be vaccinated, co-parenting can become very difficult. What happens if one parent wants the vaccine and the other doesn’t? With children now eligible to be vaccinated for COVID-19 we’re likely to see many parents turn to family courts.
What happens when parents disagree about the Covid vaccine?
There is no clear answer since this issue has yet to be litigated in Washington State. The first place to start looking for answers is the Parenting Plan which has been entered with the court. If the Parenting Plan was entered in the past few years since the mandatory parenting plans forms were instituted, restrictions on decision making will be found in Section 5. Otherwise, look for the section which addresses the major decisions about the children for non-emergency health care. If one parent is given the sole authority to make these decisions, then there is no issue. That parent has the sole authority to decide whether the child should receive the vaccine or not.
Dispute Resolution Requirement
With joint decision parenting plans, both parents to agree on the decision. If they do not agree, then they must go through the Dispute Resolution process identified in the Parenting Plan of mediation, arbitration, counseling or going to court. If mediation, arbitration or counseling are the chosen paths in the Parenting Plan, the parties are required to make a good faith effort to resolve the disagreement. RCW 26.09.184 (5)(c). If a parent frustrates the dispute resolution process, the court “shall” award attorneys’ fees and financial sanctions. RCW 26.09.184(4)(d).
That said, we have seen some attorneys file a motion to waive the mediation requirement in extreme situations. In order to do so, they filed the parent’s email exchange on the issue proving to the court that mediation would be a waste of resources. In that instance, the court waived the mediation requirement. Unfortunately for the parents the next step is to bring the issue to the court, which takes a major decision out of their hands.
Like we discussed above, if the parents cannot come to an agreement through dispute resolution, or going to court is the only dispute resolution process marked, the next step is to go to court.
Turning to the Court
A judge will not decide if the child should get the shot – they are not physicians. The court is not going to make this kind of non-emergent medical decision, but rather decide which parent would have the sole decision-making over that issue since they cannot agree.
There is no Washington case law specifically on point, yet. There are few dependency cases where one parent was found to have neglected the children by not following through with vaccination schedules but this was in tandem with other instances of neglect such as poor living conditions, sexual abuse, substance abuse and tooth abscesses. Out of jurisdiction, the court found that there was manifest injustice/hardship when the State trampled a mother’s religious and philosophical opposition to vaccination before parental rights were determined within a dependency action. Macklin v. Arkansas Dept. of Human Services, 2021 Ark. 151, 624 S.W.3d 869 (2021).
One thing to keep on the radar is if the kids’ COVID vaccine gets included in the general school-required vaccinations. Review of the Department of Health’s webpages, it does not appear they are going to include the COVID vaccines.
Even so, effective until July 1, 2022, RCW 28A.210.090 states any child shall be exempt, in whole or in part, from immunizations required under RCW 28A.210.030 through 28A.210.170 through a written certification from a health care practitioner, or parent citing religious beliefs or personal or philosophical objections (except as to measles, mumps, and rubella). The parent who does not want to have their child vaccinated could cite religious, personal or philosophical objections.
What are the consequences if a parent goes rogue and takes a child to get vaccinated without the other parent’s agreement?
From examination of the case law and statutes, it appears there would be two avenues to pursue. The first would be to put the other parent on notice that you do not agree with having the child vaccinated, citing the basis for concerns.
Religious upbringing would likely be the most powerful argument against vaccination. To restrict decision making of a parent on their child’s religious upbringing a finding of actual or potential harm must be made. In re Marriage of Jensen-Branch, 78 Wash.App. 482, 899 P.2d 803 (1995). The basis for harm would have to be established through testimony of an expert. However, at this stage of the vaccine’s development, it is unlikely to find an expert who is willing to testify either way. Also, with a religious objection, one could file an injunction immediately if there is evidence the other parent intends to step outside the parenting plan.
The second route, is to put the other parent on notice of any concerns about the vaccine. If a parent has notice and unilaterally vaccinated a child they would risk being found in contempt of court. There obviously is no undoing the vaccination, but with notice of the concern they would be aware of consequences. Some of these consequences include jail time, fines and/or modification of the parenting plan so the offending parent has no decision making authority, which may cause them to think twice. The vaccinating parent’s actions would be interpreted by the court as contempt – an intentional disobedience of a lawful order under RCW 7.21.010(1)(b).
Forms of Contempt
There are generally two categories of contempt:
1) a parent fails to perform a duty or hinders the other parent from performing their duty, or
2) a parent has failed to comply with residential provisions of the parenting plan. Matter of Marriage of Scoutten, 7 Wash.App.2d 1054 (2019)(unpublished).
Both require a finding of bad faith. Refusal to perform a duty is always deemed as bad faith whereas failure to comply with provisions has to be determined to be bad faith after a hearing. Id. In order for the offending parent to escape a contempt charge, they must by preponderance of the evidence show they lacked the ability to comply or had a reasonable excuse for noncompliance. Id. When someone deliberately disobeys an order of the court, they are in contempt under RCW 7.21.010 and can be subjected to sanctions, punitive sanctions, or both, when substantial evidence is presented. Id. Further, the court is permitted to modify the parenting plan based upon a finding of bad faith or unreasonable conduct. In re the Marriage of Zandi, 187 Wn.2d 921 (2015).
Putting the other parent on notice of objections to vaccination, which qualify as “non-emergent” care requiring joint decision making, would likely place the offending parent’s actions in the first category. If the parent vaccinated the child after Notice, it would show that parent “acted in bad faith or engaged in intentional misconduct or that prior sanctions have not secured compliance with the plan.” In re Marriage of James, 79 Wn.App 436, 442 (1995). Failure to involve the other party in non-emergency health care which are ordered as Joint is a “plain violation of the joint decision-making provision” and “provided tenable grounds for the finding of contempt.” In re Marriage of Kaplan and Kohls, 166 Wash.App. 1023 (2012)(unpublished).
Does the children’s COVID-19 vaccination require both parents’ consent?
Regarding the question of both parents’ consent, that would have to be determined by the vaccine provider. Seattle Children’s for instance only requires a legal guardian with them to sign the patient acknowledgement and consent form.
Currently under Washington law, both parents’ consent is not required for immunizations. In fact, minors can be immunized without a parent. If it is not a medical emergency or one of exempted services (e.g. inpatient mental), minors may still give a valid consent under the “Mature Minor Doctrine” if they are capable of understanding or appreciating the consequences of a medical procedure. In determining whether the patient is a mature minor, providers will evaluate the minor’s age, intelligence, maturity, training, experience, economic independence or lack thereof, general conduct as an adult and freedom from the control of parents.
Minors can also take a written consent form signed by one parent on their own to the medical provider to receive immunization. Even further, medical providers can waive parental consent as well when they feel it is necessary.
Need an Attorney or Mediator in Washington State?
If you’re struggling to get on the same page as your child’s parent on the Covid vaccine, we hope this article has been useful. Our team at Truce Law can mediate for parents or represent you to make sure that your concerns are addressed.