While vaccines have been commonplace in many respects for quite some time, there is a more recent debate about the safety of the COVID-19 vaccine, especially for children. Many parents are wondering what to do in a situation where one parent wants to vaccinate their child(ren) against COVID-19 and the other parent does not. There is not much clarity on this issue yet in terms of how this would be handled in Court. However, if the parents are separated, divorced, or in the process of obtaining a divorce, there are some general rules you should follow.

If You and Your Spouse Are Separated But Have Not Established Custody:

If you and your partner are separated and have minor children, but you have not established custody through a legal proceeding (e.g., your divorce is still pending), and there is a disagreement about whether or not to vaccinate you child(ren), you should establish custody immediately to get some clarity on the issue.

There are two forms of custody in Minnesota: legal custody and physical custody. Legal custody involves the decision making about medical, educational, and religious issues. Vaccines are therefore a legal custody decision, as it is a medical issue. Until custody is established, divorcing parents are generally presumed to share joint legal custody of all children born of their marriage. 

The same is true for some unmarried parents as well. That is, if you and your unmarried partner are separated but have not established custody, and you have both signed and filed a Recognition of Parentage[1], you are presumed to have joint legal custody. Joint legal custody requires mutual agreement on all significant medical, educational, and religious decisions. This means that both parents would need to agree on whether or not to vaccinate the child(ren).

Upon disagreement on the vaccine issue specifically (meaning one parent wants to vaccinate the child(ren) and the other does not), the default position would be that you cannot vaccinate the child without both parent’s consent. You should try to establish custody as soon as possible if you believe you and the other parent are unable to mutually make these decisions. If you cannot agree and if you submit this issue to a Court, the Court will make the decision based on the best interest factors outlined in Minn. Stat. § 518.175[2].

If You Have Joint Legal Custody:

If you and the other parent share joint legal custody, you can only vaccinate your child(ren) upon mutual agreement.

If You Have Sole Legal Custody:

If you and the other parent did not sign a Recognition of Parentage and you are not married, the father is not legally recognized, and the mother retains sole legal custody. If you are married and have sole legal custody, you can make the decision about vaccinations for your child(ren)- however, you must still notify the other parent, and it is still a good practice to get their input and seriously consider it.

Decisions Made By Agreement:

There are a few creative ways to allow one parent to make legal custody decisions upon disagreement when the parents share joint legal custody. For example, let’s say both parents share joint legal custody, but historically, one parent has always been responsible for arranging medical care. In that case, the parents may agree via a stipulation to allow one parent to make major medical decisions in the event of a disagreement. This language can be written into a stipulated agreement; however, case law suggests that such language cannot be ordered by a judge. Therefore, if you and your partner think that it will work for your family to share joint legal custody but have one parent by the primary decision maker on certain medical controversies, you should consider memorializing a stipulation stating the same.

If you are seeking advice about how to make a legal custody decision considering your family’s specific circumstances, contact the family law attorneys at Heimerl & Lammers today at (612)294-2200.

[1] If you and the other parent did not sign a Recognition of Parentage and you are not married, the father is not legally recognized, and the mother retains sole legal custody.

[2] https://www.revisor.mn.gov/statutes/cite/518.17