The sudden emergence of the COVID-19 virus in early 2020 left families around the world with questions about how to best protect themselves. The development and ultimate approval of the COVID-19 vaccine for children has created an additional layer of uncertainty for many families when they do not agree on whether to vaccinate their children against COVID. This decision implicates the joint legal custody decisions, since it involves medical decision-making for the child.
In Wisconsin
In Wisconsin, when parents have joint legal custody (legal decision-making for the child), we know that each parent has equal rights to make decisions for the child and that neither parent’s rights are superior to the other.1
When parents with joint legal custody disagree, the court does not decide whether the child will be vaccinated, but rather the court may determine which parent has the right to make the final decision (known as “impasse-breaking authority”) on specific decisions, such as whether the child receives vaccines.2
The determination of which parent is awarded impasse-breaking authority is based on the best interests of the child standard, and which parent the court believes is best situated to make decisions in the child’s best interests.3
Erin M. Idler, Marquette 2022, is with Hansen & Hildebrand, S.C., in Milwaukee. She provides individual representation and mediation for couples in the divorce process in addition to estate planning.
Outside Wisconsin
This issue is not unique to the U.S. or Wisconsin either. In Alberta, Canada, the court uses a similar best-interest standard, and recently issued a decision that determined the mother should have impasse-breaking authority for all non-COVID medical decisions and sole decision-making authority for COVID medical decisions.4
In New York, a court suspended a father’s in-person placement time with his daughter since he would not get vaccinated against COVID or submit to regular testing ahead of his placement time.5
Again in New York, a court ordered a mother retain her impasse-breaking authority for medical decisions for the children upon objection from the father over getting the youngest child vaccinated against COVID, despite the older children being vaccinated and the parents sharing joint legal custody.6
Similar Cases
COVID-related issues are becoming more prevalent, but what about other vaccines or the years before “COVID-19” and “global pandemic” became a part of our regular vocabulary?
In 2018, a Tennessee court awarded decision-making authority to the pro-vaccine father, and held that a child’s best interests sometimes require limits on the parent’s rights and interests.7
In New Jersey, when a father took his daughter to receive a TDaP vaccine after she contracted tetanus, the mother objected to this vaccine, and the court held that the mother’s religious exemption was insincere and awarded the father medical decision-making authority.8
Finally, in Virginia, the court granted sole decision-making authority to the anti-vaccine mother on a religious exemption basis, since the child had not had any vaccines previously, and found that her religious beliefs were sincerely held.9
The GAL’s Role
As is obvious from the case law, courts do not have a final decision on whether children should be vaccinated or not. Instead, courts apply the best-interests standard on a case-by-case basis to determine what is in the best interests of the particular child before the court – not just any proverbial child.
Under Wisconsin law, when there is a legal custody or physical placement dispute between parents, a guardian ad litem is typically appointed.10 The guardian ad litem’s role in such cases is to represent the best interests of the child and provide the court with recommendations as to how the court might resolve the parental dispute in a manner consistent with the child’s best interests.
A common misconception about the guardian ad litem role is that they represent the child’s wishes in a court proceeding when in reality they are appointed to be an advocate for the “best interests of the child, which includes consideration of the child’s wishes but does not rely solely upon those wishes to formulate ultimate recommendations to the court.”11
Disputes Resolved Individually
What does that mean for parents who disagree over the COVID vaccine? As we can see from the case law around the country and beyond, disputes over the COVID vaccine for children are likely to continue to be resolved on a case-by-case basis, applying the best interests of the child standard.
In Wisconsin, a guardian ad litem will typically be appointed to represent the best interests of the child and make recommendations to the child, with the court ultimately deciding which parent should be awarded the authority to make the final decision as to whether the child receives the COVID vaccine.
This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.
Endnotes
1 Wis. Stat. § 767.001(1s).
2 Wis. Stat. § 767.41(6)(b).
3 Wis.Stat. § 767.41(2)(a).
4 TRB v. KWPB, 2021 ABQB 997 (Court of Queen’s Bench of Alberta, 2021).
5 C.B. v. D.B. 2021 NY Misc. LEXIS 5111 (Supreme Court of New York, 2021).
6Matter of A.L v. V.T.L. 2022 NY Misc. LEXIS 212 (Supreme Court of New York, 2022).
7 King v. Daily, 2018 Tenn. App. LEXIS 699 (Court of Appeals of Tennessee, At Nashville, 2018).
8 MA v. AA, 2021 N.J. Super. Unpub. (Superior Court of New Jersey, 2021).
9 Grzyb v. Grzyb, 79 Va. Cir. 93 (Circuit Court of Fairfax County, Virginia, 2009).
10 Wis. Stat. § 767.407(1).
11 Wis. Stat. § 767.407(4).
