March 23rd, 2022

TO VAX OR NOT TO VAX- Legal Custody and Vaccination Decisions

Child custody cases are among the most emotional and highly-contested litigation topics in the legal field. When considering that child custody proceedings often involve families splitting apart and courts navigating what is in the “best interest of the child,” it is difficult to imagine a more contentious experience. Yet, the topic of vaccination of minor children has turned the heat up in child custody cases even further when parents have opposing viewpoints on such decision-making. What does the law say? 

Legal Framework for Child Custody

In Pennsylvania, a court considers 16 statutory factors to determine what is in the “best interest of the child” for custody. Then, Pennsylvania courts will craft a court order outlining the custody rights of the parties. This order will lay out the rights for parties with respect to the physical and legal custody of a child. “Physical custody” refers to the actual physical possession and control of a child, so essentially this involves where a child will live or spend their time. “Legal custody” refers to the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. Accordingly, between the two, legal custody rights are relevant for vaccination decisions.

Legal Custody Rights

Vaccination decision-making hinges on the legal custody rights provided in the court order. A parent or guardian may have either sole legal custody or shared legal custody of a minor child.  If a parent has sole legal custody, vaccination decision-making is not an issue because that parent can make vaccination decisions unilaterally. However, in Pennsylvania, the majority of child custody orders award shared legal custody to both parties. “Shared legal custody” means that both parties share the right to make medical decisions for the child. When legal custody is shared, then mutual agreement by the parents is required when making medical decisions on behalf of the child.

Strategies for Addressing Vaccination Concerns

Because most parties have shared legal custody in Pennsylvania, the parents must come to a consensus on the vaccination of the minor child. However, the Court will get involved when parents are not able to come to a consensus. When a custody order is in place, a party may file a petition to modify custody and ask for specific legal custody “carve-out” for vaccination, even if parties share legal custody. In two recent Pennsylvania cases of note, the courts sided with parents that wanted to vaccinate the child.  

If a party does not want to go down the path of custody litigation, the Family Law attorneys at Gross McGinley can also craft a child custody stipulation (agreement) to be approved by the court as a court order. That said, if the parties are in a dispute over whether to vaccinate, it is unlikely an agreement could be brokered out of court.