To vaccinate or not to vaccinate?  The recent expansion of the emergency use authorization for the COVID-19 vaccine in children ages 12 and over has certainly ignited this debate, but disputes surrounding a child’s medical treatment and particularly vaccinations, have been a longstanding issue between parents.  If one parent believes a child should receive a vaccine and the other parent disagrees, who prevails?

As a starting point, the consideration should focus on whether the parents share joint legal custody or if either parent is afforded sole legal custody.  In this context, legal custody is defined as “major decisions regarding the child’s health, education, and general welfare.”  N.J.S.A. 9:2-4(a)(2).  Unquestionably, vaccinations fall squarely into the “health” category.  

If either parent or a guardian is awarded sole legal custody, that individual may be able to render medical decisions, including the choice of whether to vaccinate, without consent of the other parent.  However, that right is not absolute.  First and foremost, an award of sole legal custody does not automatically exclude the other parent from receiving notice of any decisions.  In fact, the parent or guardian afforded sole legal custody has an affirmative obligation to aid and encourage the love, affection, and respect between the child and other parent.  Beck v. Beck, 86 N.J. 480, 499 (1981).  Likewise, the other parent can pursue relief from the Court if he/she/they believe the parent or guardian afforded sole legal custody is not acting in the child’s best interests.  

If the parties share joint legal custody, “the legal authority and responsibility for making ‘major’ decisions regarding the child’s welfare is shared at all times by both parents.”  Beck, 86 N.J. at 487.  In the event of a disagreement, the Court may be called upon to render this decision.  Historically, the parent afforded primary residential custody holds an advantage in this arena.  In the published trial Court decision of Brzozowski v. Brzozowski, 265 N.J. Super. 141 (Ch. Div. 1993), the parties shared joint legal custody but subsequently, encountered a dispute surrounding a non-emergent surgery for the child.  Id. at 142.  Ultimately, the Court afforded deference to the custodial residential parent, finding “any court should be reluctant to substitute whatever limited expertise it may have for the empirical knowledge and day-to-day experience of the parent with whom the child lives, except where there is a clear showing that an act or omission will contravene the best interests of the child.”  Id. at 147.  In Brzozowski, the non-custodial parent was unable to veto the non-emergent surgery selected by the primary residential caretaker.  Id.  However, the presumption in favor of the residential custodial parent has been slowly chipped away as to other “legal” decisions in recent years, such as changing a child’s surname, relocation, etc. and thus, may extend to medical disputes.

If parents share joint physical custody or either party can demonstrate the other party’s vaccination stance is detrimental to the child, the Court may exercise parens patriae jurisdiction to decide the best course of action for the child(ren).  Interestingly, there is no mandate in New Jersey directing a child must be vaccinated.  On the contrary, N.J.S.A. 26:1A-9.1 explicitly includes an exemption that allows a minor child (student) to attend school without the necessary immunizations based upon a written statement from the parent or guardian stating the immunization interferes with the free exercise of the child’s religious rights.  The Court may nevertheless step in to render medical decisions, as necessary to protect the safety of the children and safeguard public health and safety.  In the event of a bona fide dispute, the Court may consider, among other things, the child’s health history, risk of exposure to the particular disease, religious beliefs, expert testimony, etc.  

Regardless of the residential or legal custody awarded in your matter, the question surrounding vaccinations for children disputes is a fact-sensitive analysis.  If you are encountering a dispute surrounding vaccinations for children, contact the attorneys at Donahue, Hagan, Klein & Weisberg, LLC for a consultation.


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