One of the major issues that must be decided when you and your child's other parent split up is who will make medical decisions for your child. Having medical decision-making power is a huge responsibility: The responsible parent must decide everything from how to deal with a common cold to how to handle a medical emergency. Here's what you need to know about custody affects medical decision-making power and what happens when parents disagree about medical treatment.
Who makes medical decisions for a child after a divorce can be decided by either the parents or the court. When parents are able to work together and agree on the terms of custody, they can write up a custody agreement and submit it to the court for approval and entry as an order. When parents can't agree, a court will need to decide—usually based on what's in the "best interests of the child"—how to allocate custody.
There are two types of custody: physical and legal.
Both physical and legal custody can be assigned to one of the parents or shared by both. The term "joint custody" refers to when the parents share either (or both) physical or legal custody.
Whoever has legal custody of the children is primarily responsible for making decisions about their medical care. When one parent has sole legal custody, that parent can decide how to handle any medical decisions for the child without asking the other parent (or the court) for approval. On the other hand, when parents share legal custody, neither parent can make a medical decision for the child without the other's permission.
Although it might be an uphill battle, you can still fight for what you believe is best in court if you do not have legal custody of your child. If your child's legal custodian refuses a life-saving or life-improving medication, surgery, vaccine, or other medical procedure and you disagree, you can petition the court for intervention.
If the court agrees that the issue is important, the judge will hold a hearing or trial, during which the parents can present evidence in support of their arguments. Although a judge can require a parent to cancel or schedule a procedure, most judges will do so only if it is clearly in the child's best interests. When it comes to overriding a parent's decision on a medical issue, most judges will give a lot of weight to evaluations and opinions provided by the child's pediatrician.
Legal disputes between co-parents over whether to vaccinate children are nothing new. But there's a renewed sense of urgency about how to resolve medical disagreements between parents as COVID-19 vaccines become available to children.
So how do divorced parents who disagree about child vaccines make these important medical decisions for their children? To settle the matter, the parents must look to their parenting agreement or order. In most circumstances, a parent who has sole legal custody of the children has the power to decide whether the children will receive vaccines, and, if so, which ones and when the children will receive them.
It's a more difficult call when parents share legal custody. Before taking any action, parents should review the custody order or agreement to see if there is any specific mention of vaccines. In most cases, any specific mention will govern the matter, and the parents must follow it. Although a parent can ask a court to modify a custody order, it might take a considerable amount of time for the court to rule on a modification request. If, in the meantime, one parent moves forward with vaccinating the child (and has the right to do so under the existing order), it's unlikely that a court would find fault with the parent's actions.
If the custody order is silent on the topic of vaccination but gives both parents equal rights to make medical decisions, the best course of action is for the parents to mediate or ask a court to decide the matter. Many joint custody orders state that the parents will make medical decisions based on the "best interests of the child." When parents ask a court to make a decision about vaccinations, the judge will hear evidence from the parents about the situation, and will issue an order based on the judge's assessment of what is in the child's best interests.
If you're beginning your divorce or custody negotiations and you know you and your co-parent have a difference of opinion on vaccines or other medical procedures, you'll need to address these issues. Even if you and your co-parent have agreed on how to handle medical issues in the past, it's still wise to discuss them again in the context of creating a custody agreement.
To avoid uncertainty and future disagreement, you'll want your custody order to be as specific as possible. For example, if you're particularly concerned about vaccinating your children in the future (say, if they are 11 now and eligible for a vaccine at the age of 12), it's a good idea to ask the court to give specific directions on the matter in the custody order. If you don't tackle the matter head-on, you and your co-parent are bound to end up in court again.
When your child's health is in jeopardy because of a true emergency, it's in your child's best interests to take immediate action—regardless of your legal custody status. If the parent who has sole or shared legal custody isn't immediately reachable, you are within your rights to take reasonable measures to deal with the emergency.
For example, say you and your child are in a car accident, and your child is seriously injured. Both of you are brought to the hospital, and the emergency room doctor tells you your child needs immediate surgery. In a situation such as this, and assuming that the other parent isn't present to make decisions, you can give permission for the surgery as long as you believe it is in the child's best interests. However, you must inform the other parent as soon as possible.
If there's time to reach out to the child's other parent before deciding how to proceed, you must follow the terms of the court's custody order. If the other parent has joint or sole legal custody, that means you must contact the other parent for permission before you move forward.
When a custody order is in place, the parents must follow it. However, custody orders aren't set in stone—they can be modified. In most states, a parent must petition (ask) the court to modify the order, and the parent must have a reason for requesting the change. Most commonly, judges will modify a custody order when the family's circumstances have materially changed or when a modification is in the best interests of the child.
For example, say that at the time of your custody hearing, your co-parent was communicating well, willing to listen to medical experts, and focused on the child's well-being. Lately, though, your co-parent has started getting medical advice from conspiracy theorists and refuses to listen to your child's pediatrician's recommendations. Your co-parent's drastic shift in parenting style might constitute a significant change in circumstances, and you could certainly argue that it would be in the best interests of your child to limit your co-parent's medical decision-making power.