A new case on the COVID-19 vaccine and child custody modification in Colorado asks what happens after the divorce when a parent has a change of heart about vaccinating the children, while the other maintains a religious-based objection to vaccination?

Rocky Mountain Parenting

In a post-divorce dispute, a court had to address the burden of proof to apply when considering the request of a father to modify the medical decision-making responsibility clause of their parenting plan to allow him to vaccinate the children, over the objection of the mother.

The parties’ parenting plan provided for joint medical decision-making authority and that “[a]bsent joint mutual agreement or court order, the children will not be vaccinated.”

The father had a change of heart about the children remaining unvaccinated. He described a “wake-up moment” he had when traveling for business to Seattle while the city was experiencing a measles outbreak, and then being afraid to be around the children after he got home out of fear of unknowingly exposing them.

Mother opposed vaccinating the children, in part, because it conflicted with her religious beliefs and also argued that vaccines pose a risk of side effects for the children. Specifically, because mother has an autoimmune disease and the children all had midline defects at birth, she asserted that vaccinations for the children are contraindicated.

The parents agreed a parenting coordinator/decision-maker (PCDM) could decide the issue. However, the PCDM declined to render a decision, stating that the issue was outside of her expertise and likened rendering a decision on it to “practicing medicine without a license.”

While the trial court rejected mother’s medical-based objections, the judge found that vaccination would interfere with mother’s “right to exercise religion freely,” and therefore imposed an “additional burden” on father “to prove substantial harm to the children” if they remained unvaccinated.

The court ruled that father had not met this additional burden and denied his motion to modify medical decision-making responsibility.

Father appealed.

Florida Vaccinations and Child Custody

I have written about the relationship between vaccinations and child custody in Florida before.  In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

A Double Black Diamond Issue

The appellate court reversed.

Generally, Colorado has a substantial change in circumstances test for modifications, so that a court cannot modify a parenting plan unless it finds that a change occurred in the circumstances of the child or of a party and that modification is necessary to serve the child’s best interests.

In Colorado, a court has to keep the decision-making responsibility allocation from the prior decree unless doing so “would endanger the child’s physical health” and the harm likely to be caused by a change in decision-making responsibility is outweighed by the advantage to the child.

In this case, the court found that the mother’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents because when allocating decision-making responsibility between parents, the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.

The trial court erred by imposing a heightened burden on father to show substantial harm — a burden only relevant to show a compelling state interest under a strict scrutiny analysis — when considering his request to modify the parenting plan.

Once the court found the failure to vaccinate endangers the children’s physical health, and that the risks of vaccination are “extremely low” as compared to its benefits of “preventing severe illness, permanent severe damage, and death,” it should have proceeded to the second prong of the inquiry, namely, whether the harm likely to be caused by changing decision-making responsibility outweighed the benefit to the child.

The opinion is here.