It can be a thorny issue in family law for divorced or divorcing parents who disagree on medical treatment for their children or when the parent’s religious beliefs are not aligned.
For example, whether one parent’s religious belief is against vaccinations and the Covid-19 shot. Or when one parent argues that Covid – 19 vaccines have only been approved for emergency use and have not gone through the usual, lengthy, stringent FDA approval process, there are no long-term studies. And children have a very high successful Covid-19 recovery rate. Therefore, one parent argues that the child should not have the vaccine, but the other parent argues that the vaccine is safe, effective and wants the child vaccinated.
How are such issues resolved?
Firstly, the parents should consult with their trusted pediatrician about the issue and attempt to resolve it with the advice and counsel of their physician. In the case of a religious objection, speaking with a trusted religious authority and the pediatrician would be in order. But, when consultation between the parents and the appropriate caretakers and advisors is impossible, what then?
While it may not be a literal translation, the legal translation means “in the place of the parents.” In divorce, Probate and Family Court have the power to care for those who cannot care for themselves. Usually, in a divorce, this doctrine applies to minor children. By their nature, they cannot care for themselves and rely on their parents, caretakers, or guardians to care for them. When their parents cannot care for them because they disagree about what form that takes – to take a vaccine or not – the legal issue may be taken to Probate and Family Court for a judge to decide.
Make Arguments Clear to the Court
In preparing for a hearing, parties must make their case to the court clear. I have witnessed litigants, or their lawyers make a loose and disorganized argument about why the court should or should not exercise a legal authority to override one parent’s decision. It is not a matter to be taken lightly, especially if the vaccination issue was brought before the court. Information and documentation supporting a parent’s position should be available and stated clearly in writing. Emergencies or exigent circumstances sometimes call for hasty pleadings, but this is not routine. Support should be cross-referenced and attached to the pleadings as exhibits (being mindful, however, of privileges and HIPPA considerations and taking appropriate actions to impound material when applicable).
Objections to medical care should not be taken lightly.
Filing an objection should not be taken lightly. I have also witnessed the opposite, where one party overreacts to minor medical issues and has children in emergency rooms far too often. Suppose a pattern of overreaction emerges by a parent. It is essential to have a good relationship with your legal team to determine whether counseling for a client or the other parent may be in order. The issue of legal custody in family law situations can bring interesting and sometimes complicate issues. Exercising legal custody regarding a child’s medical care can become nuanced. A well-served client has a legal team that examines the issues, asks appropriate questions, data mines to understand the issues, and presents the options to the client and the case to the court.
If you have a situation that involves legal custody decisions regarding the care of your child DiPiano Family Law Group, P.C. is here to help.