Last Updated on January 12, 2022 by Melody McDonald
Now that the child COVID vaccine has been given the green light for children ages 5 and up, a new dilemma has emerged in Texas family law among divorced or separated parents.
What happens when parents disagree on the COVID Vaccine? Who gets to make the decision?
Unfortunately, the answer is not always clear-cut or simple. The first thing we must do is turn to the divorce decree or child custody order for guidance.
What kind of child custody agreement, or conservatorship, is in place?
In Texas, child custody is referred to as conservatorship. The right to vaccinate your child depends on the type of conservatorship you have. The Texas Family Code recognizes three types of conservatorship:
Joint Managing Conservators — parents share rights and duties regarding the child, including health care decisions. Your court order should outline whether decisions are:
*Independent to each parent, meaning each parent can make a decision without the consent of the other parent;
* By joint agreement, meaning the parents must agree on the decision; or
* Exclusive to one parent, meaning that parent is the sole decision-maker.
Sole Managing Conservator — one parent has the exclusive right to consent to a child’s medical, dental and surgical treatment. They have the final say about whether the child is vaccinated or not.
Possessory Conservator — a person with the right to possess and access a child. This person has visitation rights. If one parent is named sole managing conservator, the other is usually named a possessory conservator. This doesn’t usually apply to medical decisions, only visitation.
Joint managing conservators who disagree about the child COVID vaccine in Texas
Joint managing conservatorship is the most common custody arrangement in Texas, but when it comes to child COVID vaccinations, it can also be the most confusing.
Some orders give one parent final decision-making authority over medical decisions. However, if that right is shared by both parents, the decision could be made by a designated tie-breaker, such as the child’s pediatrician. If the pediatrician doesn’t want to get involved, then you could end up in court.
Unfortunately, it could take weeks for the judge to hear the dispute, which would likely involve a request to enforce or modify the current custody order. Since time is a factor, a parent could seek an emergency injunction to stop their ex from vaccinating their child pending that hearing.
Mediation is another option. Some court orders require parents to go to mediation when they are unable to agree on parenting or health care decisions. This is often a good alternative that can help parents reach an amicable decision.
Hopefully, your court order is clear in regard to medical decisions. If it is not, it is important to speak to a family law attorney and seek guidance as soon as possible.
What if I don’t have a court order?
(SAPCR). You can then ask the judge to make orders about conservatorship and the rights and duties of each parent. Again, this takes time. If you are in this scenario, it’s important to speak with an attorney to discuss your immediate options.
Can a child make the final decision about getting a COVID shot?
No. In Texas, minors cannot receive vaccinations without consent from their parents or guardians.
What if my ex got our child vaccinated against my wishes?
If your ex doesn’t have independent healthcare decision-making authority – or your court order says you and your ex have to agree – he or she could be found in contempt of court for violating the court’s order.
However, if your court order says that you and the other parent each have independent rights and duties, then each parent can get the child vaccinated, even against the will of the other parent.
Battling your ex over the child COVID vaccine? Contact us.
We understand the child COVID vaccine is a controversial issue, but it can also be a legal one for co-parents. It is not uncommon to see parents disagree on the COVID vaccine. If you and your ex disagree about getting your child a COVID vaccination and you aren’t sure about your rights, it’s important to speak with an experienced family law attorney. Please call 817-900-3220 to schedule a consultation today.