COVID Vaccines and Child Custody – Who Decides?

The recent rollouts of the COVID-19 vaccines have revealed differences of opinion as to who will and who will not take the vaccine. When you are separated or divorced, who decides for the children?

North Carolina General Statutes 130A-156 and 130A-157 permit parents to exempt their children from vaccinations for religious and medical reasons. If the parents agree on withholding vaccines, there is generally no issue, but what if one parent wants the children vaccinated and the other parent does not? Generally, a judge must settle disputes like this. The judge will evaluate: which outcome would be in the child’s best interest; the child’s safety with either parent; each parent’s ability to care for the child; and whether the parents will focus on the child’s overall well-being in decision making.

The North Carolina Court of Appeals in Diehl v. Diehl, 630 S.E.2d 25 (N.C. App. 2006), quoting Patterson v. Taylor, 535 S.E.2d 374 (N.C. App. 2000), held that legal custody refers to the parent’s right to make decisions regarding the education, healthcare, religious training, and the like for the child. Suppose a parent has sole legal custody of their children. In that case, that parent will have the ability to unilaterally make life decisions, like whether to vaccinate or not. In awarding sole legal custody, the court must generally determine 1) that one parent is best suited to make life decisions for the child unilaterally and 2) that parent’s decision-making is in the best interest of the minor child. But sole legal custody may also be determined based on evaluation of the other parent’s fitness to parent the child. Joint legal custody implies that parents awarded joint custody share the responsibility for making life decisions for their children, such as healthcare education and religious training. (Id. at 28).

If you have a child custody order from a judge or have a consent order with the other parent for child custody, and you find yourself in disagreement with the other parent on whether to get your child vaccinated for COVID-19, an experienced family law attorney can assist you through the legal pitfalls of a child custody action.