Whether or not to vaccinate a child has been an issue for years that family law attorneys have addressed during divorce proceedings or in post-judgment cases (i.e., after a divorce). Clients often ask whether a Court has the authority to require a child to be vaccinated when one parent wants the child to be vaccinated and the other parent does not. This question has become even more relevant recently in light of the Pfizer COVID-19 vaccination being available to children ages 12 and older. A recent unpublished (i.e., non-precedential) Appellate Decision has shed some light on this issue. As is the case with most legal issues, the answer is “it depends.”

In M.A. v. A.A., the Court appointed one of the parents as “the limited medical guardian of vaccinations for their daughter.” In other words, it appears that a Court may have the authority to require a parent to get their child vaccinated over their objection. However, as always, each case is different, and the outcome of any particular case depends on the facts of each case.

In that case, the parties were married in 2005 and divorced in 2018. They had one child who was born in July of 2013. The parties’ Marital Settlement Agreement (MSA) specified that they shared joint legal and physical custody of their daughter and agreed that “their daughter’s best interest is paramount.” Notably, the parties’ MSA did not address the procedure for resolving disputes in the event of a disagreement about a medical emergency. The MSA also did not address the issue of vaccinations or the parties’ religious beliefs.

In 2015, before the parties’ separation later that year, they submitted a letter to their daughter’s preschool claiming a religious exemption from vaccination requirements and noted that their objection was “based on our lifelong deeply-held spiritual beliefs based on scripture.” Following their divorce in 2018, the parties provided a similar letter to their local Board of Education that again requested a religious exemption to the vaccinations required by the State law to attend kindergarten.

In 2019, the child stepped on a rusty nail, and in return, received a diphtheria, tetanus, and pertussis (DTaP) vaccination. The other parent was advised that the child received this vaccination, and there was no adverse reactions to the vaccination. A few weeks later, the other parent and the child were scheduled to go on a trip out of the country. The parent who obtained the vaccinations for the child objected to the trip because the child did not have all her vaccinations. That parent filed an Order to Show Cause to prevent the other parent from taking the child out of the country. That application was denied because the parents previously vacationed with the child out of the country, even though the child was not vaccinated. After the child returned from the trip, the parent who obtained the vaccinations in the first place took the child for her follow-up vaccinations, this time for a second tetanus shot and the “MMR” vaccine for measles, mumps, and rubella. That parent authorized the vaccinations without the other’s knowledge or consent. Following the second vaccine, the child developed a rash on her back.

Upon learning about the second round of vaccinations, the other parent filed a motion seeking sole custody of the child and to enjoin the other party from having any more vaccinations administered to the child, claiming that the parties agreed not to vaccinate the child and that they submitted a “religious exemption” from vaccination for her attendance at preschool/kindergarten. The other party opposed, requesting sole legal custody to make medical decisions for the child, including decisions on vaccinations, alleging that vaccinations were needed to keep the child “safe and healthy” for school.

The Court conducted a three-day Plenary Hearing. The Court heard testimony from the parties, the child’s treating pediatrician, and a medical expert in support of the parent opposing the vaccinations, claiming that this child had a higher chance of being at risk since she had a previous autoimmune condition. That expert did not speak with the opposing parent or the child’s pediatrician. He also did not review the child’s medical records. ‘””‘. On the other hand, the child’s pediatrician testified that vaccines were “highly effective,” and that this particular child had only a 3-5% chance of an adverse reaction to the vaccine due to the child’s previous autoimmune condition and recommended the child be vaccinated.

The parties also testified. The party opposing the vaccinations claimed a religious exemption to the vaccines. However, the party in favor of the vaccines claimed that the other party was an atheist and that he was raised Catholic. The party in favor of the vaccinations also testified that they did not discuss the topic of vaccinations until they became pregnant, but that the issue of a religious-based objection never came up. The party in favor of the vaccinations testified that they were never against vaccinating the child, but they were simply submissive to the other party’s position on the issue of vaccinations. That party further testified that the religious exemption letters for preschool and kindergarten were fraudulent and did not reflect the religious beliefs of either party.

The Trial Court denied the application to prevent the other party from vaccinating the child, and appointed the party in favor of the vaccinations as limited medical guardian for immunization purposes only. Notably, the Court considered the best interests of the child standard, and found that the party opposing the vaccinations failed to demonstrate that there was a significant risk of an adverse reaction if the child was vaccinated. The Court concluded that it was in the child’s best interest to appoint the parent in favor of vaccinations as the sole decision-maker for immunizations, finding that the “benefits of immunization outweigh the potential risks to the child.” In so ruling, the Court found that the methodology used by the medical expert opposing vaccinations was lacking because that expert did not speak to the opposing party, examine the child, or review her pediatrician’s records. The Court further found that the parent opposing the vaccinations was not a credible witness, insofar as she did not assert a religious exemption against vaccination when she immigrated to the United States or when she was admitted to college, even though proof of vaccinations were required for both. She also did not personally recall if she was vaccinated herself. The Court found that party to be combative and her testimony contradictory. On the other hand, the Court found the parent in favor of vaccinations to be very credible.

The Court required the party opposing the vaccinations to bear the burden of proof that it was in the child’s best interest not to be immunized and that this decision was based on religious reasons, and adopted a sincerity analysis. The Court found the party opposing the vaccine to be inconsistent with their religious beliefs and practices and relied on the fact that the party changed their story and lacked candor. The Court was “left with the impression that [that party] was hiding behind of falsehood of religious doctrine in order to further a philosophical and moral stance.” The Court found that that party lacked “sincerity and consistency” in her claim that vaccinating the child would violate her religious freedom. The Court further found that neither medical expert demonstrated that immunizing the child exposed her to serious risk and found that the child should be immunized “for her protection and the protection of others.” The party opposing the vaccinations appealed the Trial Court order, and the Appeal was denied. The Appellate Division upheld the decision of the Trial Court, finding that the Trial Court properly applied the best interests standard set forth in the parties’ MSA, and that the Trial Court correctly determined that it was the party opposing the vaccinations burden of proof that there was an increased risk of an adverse reaction to immunization. The Appellate Court further deferred to the Trial Court’s credibility findings that the party opposing the vaccinations was not credible and that party and their expert had not met their burden of proof that there was an increased risk of an adverse reaction to immunization for that child. The Appellate Division further held that an assertion of a First Amendment religious freedom claim requires the beliefs in question to be (1) sincerely held, and (2) religious in nature, and that the trial Court’s determination that the party opposing the vaccinations lacked sincerity was supported by the record.

This decision is illustrative as to how a Court may rule on the issue of vaccinations, but as with many legal issues in family law, the outcome of any particular case is dependent on the facts of that case.