As the government looks to expand availability of COVID-19 vaccines for children, some family law practitioners are anticipating a rise in disputes between parents about whether to vaccinate minors.
Since views on vaccines tend to be firmly held, finding middle ground among divorced and separated parents who are on opposite sides of the issue could be difficult.
Attorneys and judges who handle such cases should have an understanding of technical information about the vaccine, as well as an appreciation of the issue’s emotionally charged nature, some family lawyers said.
COVID-19 vaccines have been approved for children ages 12 and up, but the Food and Drug Administration and the Centers for Disease Control and Prevention are expected to decide soon on whether to allow vaccines to be administered to children ages 5-11.
“It has not become an all-out legal battle yet because it’s not ripe for that. But I have clients that are preparing for that battle,” said Allen Scazafabo, Jr., chairman of the family law group at Riker Danzig Scherer Hyland & Perretti in Morristown, New Jersey.
Scazafabo estimates that he has fielded 50 to 75 inquiries in the past year about what will happen when parents disagree about vaccinating their children for COVID-19. Typically, a current or past matrimonial client who contacts him for some other issue will say “by the way,” before asking his views on the vaccine.
Clients “have indicated [that] when the time comes, one parent wants it and one parent doesn’t. I anticipate there will be a lot of filings,” he said, adding that such disputes are likely to be litigated because finding middle ground is sure to be elusive. “It’s a zero-sum game if both parties dig their heels in,” Scazafabo said.
Scazafabo has been researching the children’s vaccine issue, and has learned that many opponents of COVID-19 vaccines for children are concerned about the potential to harm their daughters’ future ability to have children.
Opponents also point out that children who do contract COVID-19 tend not to become seriously ill, he said. But proponents of vaccines for children argue that contracting COVID-19 might cause long-term harm to the patient’s organs, he said.
“I would say to lawyers, ‘You have to be very knowledgeable in all areas of science, in both arguments, on both sides, to best guide your clients.’ [A court petition on vaccinating a child for COVID-19] is going to be very fact-sensitive. Also time-sensitive. If the application is filed tomorrow that may be a starkly different outcome than an application that is filed three months from now,” he said, citing changing government policies and political considerations.
Disputes between parents over whether to vaccinate a child are not unique to the pandemic, said Corinne Cooke, a member of the family law and divorce group at Stark & Stark in Lawrenceville. But she anticipates “many disagreements” among parents over whether their child should get a COVID-19 shot.
“They’re really hard to mediate. It’s hard to compromise,” Cooke said. “The courts are going to be interested in what’s in the best interest of the children. A big factor will be what the pediatrician recommended,” she said.
Tracy Julian, chairwoman of the family law practice group at Pashman Stein Walder Hayden in Hackensack, likewise pointed out that parental disputes over vaccines for their children are not uncommon in family law practice, even before the pandemic. But she anticipates that some parents will go calling their lawyers to deal with disagreements about getting the COVID-19 vaccine for their child.
Julian said the frequency of such COVID-19 vaccine disputes in New Jersey will be tempered by the state’s high adult vaccine rate and the existence of regulations, such as the one requiring Rutgers University students to get the shot.
Julian said, “I think the vast majority of parents will consider getting their child vaccinated.”