Coparenting isn’t easy. It’s even more difficult when parents don’t agree on major issues including medical treatment. But what happens when the medical treatment in question is a COVID-19 vaccine? Who gets to decide when and if a child is getting vaccinated for the coronavirus in Texas?
More and more COVID-19 vaccination battles are filtering through the courts as parents struggle to reach agreements. Parents want what’s best for their children. Unfortunately, agreeing on what’s best isn’t always as easy as some might think.
The Food and Drug Administration approved vaccines for children and teens in 2021. However, disagreements regarding the effectiveness of the vaccine, resistance to government mandates, and the risk of side effects have put many separated and divorced parents in a head-to-head fight. So, who gets the final say?
What Happens when Texas Parents Disagree on Vaccinating their Children for COVID-19?
Parents have fought about vaccines for ages, but the pandemic has really pushed the topic into the spotlight. Some parents are enthusiastic about the COVID-19 vaccines while others are concerned. When an agreement can’t be reached, then it all goes back to the existing child custody agreement.
Every Texas parenting plan contains specific information about which parent is able to make what decisions for their children, including medical decisions. A person with legal rights toward a child is called a conservator. Typically, these are parents, but occasionally they may be grandparents or other guardians. The Texas Family Code allocates specific rights and duties to conservators. More specifically, regarding the medical treatment of a child, there is a right to make decisions regarding invasive medical treatment. There is also a duty to provide non-invasive medical treatment.
Understanding Medical Rights in Your Custody Agreement
Elective medical decision rights are allocated in one of four ways. The conservator either has the exclusive right, independent right, joint rights, or by agreement with the other conservator. When the parent has the exclusive right, it means that they can make all decisions without concern for the other parent’s opinion. Independent rights mean that each parent independently has the right to consent to a procedure without consulting the other. Joint rights require the parents to agree to any procedures. If they cannot agree then the status quo will remain. By agreement with the other conservator means that one parent has the right but that they must request input from the other.
In the event of an emergency, either parent can consent to medical treatment. In addition, most Texas custody agreements give both parents (and conservators) the independent duty authorizing them to decide on non-invasive medical and dental treatment when it comes to their children. This is because it is generally considered neglectful for a parent to avoid providing their child with basic medical treatment when needed.
Are Vaccines Considered Invasive Procedures or Non-Invasive Procedures?
While the explanation of medical rights in a custody case is something relatively straightforward and decided in the past, there is still some confusion.
The argument comes down to whether or not a vaccine is considered an invasive procedure. Defining where it falls makes it clearer who gets the final say. Unfortunately, there’s really no clear answer in Texas law. This means that courts may rule differently on if a vaccine is considered invasive or not.
According to the Texas Health and Safety Code, vaccines are not invasive because they do not require an operating room, delivery room, or surgery. In addition, several Texas courts have ruled that vaccines are in fact, non-invasive. But with no appellate case law authority definitively saying one way or another, the question is left unanswered.
Arguments could be made either way regarding the invasiveness of vaccination. And it’s likely the debate will continue for years to come. In the meantime, who gets to make the decision? And what about those children who are no longer in the care of their parents?
Vaccines and Foster Children
In Texas, over 1,000 foster children have been allowed to refuse COVID-19 vaccination. This is despite the fact that young children are generally not able to make decisions regarding their own medical treatment.
This may be due to the confusing guidance from the Department of Family and Protective Services. Many caseworkers seem unclear on if they are allowed to get young children vaccinated without a judge’s order or consent.
The DFPS COVID-19 vaccine policy states that “unlike other routine vaccines, the COVID vaccine is currently authorized by the FDA for emergency use authorization, which means getting it is voluntary and the youth should agree (if able) in addition to the medical consenter.”
Yet others would argue that allowing young people to decide if they want a shot or not isn’t the way to go. Especially considering some of the children being questioned are as young as 5 years of age. It’s generally believed that someone of such young age isn’t able to weigh the information presented to them in a way that would enable them to make an educated decision.
So, who does get to decide?
Working Towards a Solution
The internet is flooded with vaccine information; the good, the bad, and the ugly. Parents and conservators are urged to speak with trusted medical professionals to get the information they need in order to decide what’s best for their child or children.
Spend the time speaking with multiple medical professionals, reviewing information on the Pfizer vaccine, Moderna vaccine, Johnson & Johnson vaccine, and any others that may be available at the time of the dispute. Look into the possible side effects. Learn about what to expect with each vaccine dose. Talk about the booster shot. Discuss any concerns you may have about your child’s age or any underlying conditions. Try to set emotion aside to work with the other parent and find a solution that’s best for the child.
Making medical decisions can be scary. It’s important to remember while you go through this process that both parents only want what’s best for the child or children. Treat each other with respect and kindness and keep an open mind when it comes to hearing the other person’s thoughts or concerns.
When Parents Can’t Agree
When parents can’t agree and it’s not clear who can make the decision or what category the vaccine falls under, they may find themselves in court. Going to court regarding a decision that even the courts can’t seem to agree on can feel like a risky move. After all, this is your child’s health and safety.
The best thing you can do when facing a child custody dispute is to hire a great family law attorney. Tell them your side and the reasons behind your decision. An experienced and qualified lawyer not only knows Texas law inside and out, but they’ll walk you through your custody agreement to better understand your rights. In addition, they’ll understand what the judge is looking for in order to better provide that information for your case.
Any time that you find yourself in court regarding your children it’s always better to have an excellent attorney in your corner. Court battles can get ugly, especially when the parties involved don’t see eye to eye.
You can also ask your attorney about making modifications to your existing child custody agreement. If you feel as though circumstances have changed substantially since the original agreement was made, then you may be eligible to modify the order.
In addition, if you’re just beginning the divorce process then speaking to a knowledgeable and experienced attorney is vital. Not only will they help you with the child custody aspect of your divorce, but they will also guide you through child support, property division, spousal support, and other things you may not have ever thought of.
Make an Appointment with the Jimenez Law Firm
Here at the Jimenez Law Firm, we take your rights seriously. We go the extra mile to make sure you understand all of your options. Our experienced lawyers are dedicated to understanding your point of view while helping you navigate the legal landscape with confidence.
The process of finding a lawyer can be frustrating. By the time you realize you need one, chances are you’ve already experienced a lot of stress and negative feelings. We are here to get you through these difficult times by giving you individualized attention and our honest opinions about the recommended course of action. Our team will work with you to strategize how to get a positive outcome for your specific case.
We provide legal representation throughout North and West Texas for those going through a divorce, child custody issues, child support issues, family violence, grandparent’s rights, termination and adoptions, and so much more. Reach out to us today at 214-513-0125 or fill out our online form to schedule a consultation to discuss your unique case.