Covid, Vaccinations and Ohio Custody Law

Last month, the FDA expanded its emergency use approval of the Covid vaccine to reach children aged 12-15.   This month, I am filing a motion for a court to require a 14-year-old to receive the vaccine, against one parent’s wishes. I predict that many more such court battles will follow in the coming months.

A Crash-Court in Ohio Custody Law

I explain the difference between Ohio Shared Parenting vs sold custody in terms of a veto: the parent with sole custody has the veto, while neither parent in a shared parenting arrangement has a veto. In terms of vaccinations, Courts have the general authority to require vaccinations where public safety is affected. When it comes to disagreements between divorcing parents, the formal custody order is paramount.

Simply stated, a parent with sole custody can decide whether to administer a Covid vaccination to a child. The other parent is left with a difficult choice. If that parent opposes the vaccine, a legal challenge will be unlikely to succeed. The Courts rely on experts and governmental agencies for guidance in the scientific world. Courts trust sources such as the CDC, the FDA and the American Academy of Pediatrics. If the non-custodial parent is the parent who wants the child to be vaccinated, he/she will likely have a far better chance of success. The stumbling block to all of this, for the non-custodial parent, is that the custodial parent is entrusted with acting in the best interests of the child. This is a steep hurdle to overcome.

 In Shared Parenting, parents usually have equal decision-making authority. If the parents cannot agree, then the Court can either limit the scope of its decision to whether the child is to be vaccinated; or it can make a broader decision on “who gets to decide.” This would take place in during a hearing where each parent would present medical testimony to support his/her position. Most courts favor shared parenting, so the scope of the decision is likely to be limited.

What do I Need to Prove?

The parent must establish that their wishes about vaccines are in the child’s best interest. When the issue is technical, expert testimony will be required. The Court is unlikely to accept an internet warrior’s individual research or passionate opinion. Instead, objective testimony from the child’s pediatrician and official publications will be given great weight.

The Court is likely to consider the child’s wishes and inquire as to the child’s reasoning. The Court will be interested in whether all vaccines have been previously opposed by either party; whether the parents have previously agreed on vaccines; and any true medical exemptions the child may have. Whether the parents themselves have been vaccinated will be relevant.

What if I Just Go Get my Child Vaccinated without Telling the Other Parent?

For starters, the child will probably tell the other parent. Telling the child to keep a secret from the other parent is never a good move.

A parent who just gets the vaccine against the other parent’s wishes could likely face contempt of Court charges. Obviously, the child cannot be unvaccinated, but the parent could face a contempt finding and perhaps an award of attorney fees. Mitigating facts would be if the offending parent had sought medical advice for the child before getting him vaccinated or if the other parent has a pattern of vexatious disagreements.

 

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