Child Vaccines & Child Custody in Colorado Divorce Cases

Vaccines – A Debate Bigger than Child Custody

Vaccine Child Custody - three words which seem to be dividing society more now than at any time I can recall.

Growing up, I lived in Egypt, where vaccines against the many diseases which ran rampant were a fact of life. Later, as an Army JAG officer, I received the gauntlet of immunizations prior to deployments to Haiti and Bosnia. Other than a few half-hearted attempts to dodge the Army’s annual flu shot requirement, I never gave vaccines a second thought.

However, since about 2000, there has been an increasing debate raging, with the weight of medical opinion on the pro-vax side, and the anti-vax side pointing to cases of medical complication, or consisting of people who have religious or philosophical objections.

Who are the Pro-Vaccine & Anti-Vaccine Sides?

While the purpose of this article is not to wade into the immunizations debate, a bit of context is required before discussing the main topic of whether a parent can vaccinate their kids over the other’s objection.

Pro-Vaccine - The Weight of Medical Opinion

The list of medical authorities recommending childhood vaccinations is too large to list in its entirety, but the prevailing and overwhelming medical opinion favors vaccines, from international organizations, the departments of health from western nations, the federal government and every state, as well as major medical organizations. Here is a brief overview of some of that authority:

• World Health Organization (WHO), which has a section of their website dedicated to immunizations, and a strong pro-vaccine policy: “Immunization is a key component of primary health care and an indisputable human right. It’s also one of the best health investments money can buy. Vaccines are also critical to the prevention and control of infectious-disease outbreaks. They underpin global health security and will be a vital tool in the battle against antimicrobial resistance.”
• Centers for Disease Control & Prevention (CDC), which has a Vaccines & Immunizations section on their website with information about the safety and effectiveness of vaccines, recommended immunization schedules, etc.
• National Institute of Allergy & Infectious Diseases (NAID), part of the National Institutes for Health, which has a Vaccines section on their website. This agency is probably one that many people had not heard of prior to Covid, but now its director, Dr. Anthony S. Fauci, is a household name.
• U.S. Department of Health & Human Services (HHS), which has a Vaccines & Immunizations section of the website.
• American Medical Association, which has a statement on vaccine safety stating: “The American Medical Association (AMA) fully supports the overwhelming evidence that vaccines are among the most effective and safest interventions to both prevent individual illness and protect the health of the public.”
• American Academy of Pediatrics, which has a whole section of their website on immunizations.

When researching the vaccine issue on behalf of a pro-vax client, one helpful resource was the Skeptical Raptor, a frequently-updated blog debunking anti-vax claims, filled with citations to primary legal and medical authority.

Anti-Vaccine Movement

This is not an advocacy article for either position, but it’s a statement of fact that anti-vaccine advocates are less numerous, and not as prestigious, with no governmental departments of health or major medical organizations supporting their position.

The modern anti-vaccine movement got its start following a 1998 study published in the British medical journal The Lancet by Dr. Andrew Wakefield which linked the MMR vaccine to autism. Lancet has retracted the paper, and Wakefield was stricken from the British medical register for fraud in connection with the paper.

Prominent anti-vax voices include:

• Dr. Andrew Wakefield, authority of The Lancet study referenced above, who still speaks at anti-vaccine events worldwide.
• Robert F. Kennedy, Jr., who chairs Children’s Health Defense.
• National Vaccine Information Center (see website).
• Various organizations, many of which publish journals with anti-vaccine articles.

The anti-vaccine movement often cites the existence of two federally-run agencies as proof of the dangers of vaccines:

• Vaccine Adverse Event Reporting System (VAERS), run by the Department of Health & Human Services, is not an anti-vaccine site, but more of a clearinghouse where people can report adverse reactions to vaccines. However, as the site disclaimer itself notes, it is basically a compilation of anecdote (“Reports may include incomplete, inaccurate, coincidental and unverified information”), and there is not necessarily a link between a vaccine and the reported reaction (“the inclusion of events in VAERS data does not imply causality.”)
• National Vaccine Injury Compensation Program, (aka VICP or “Vaccine Court”), administered by the federal Health Resources & Services Administration, provides for no-fault compensation for an injury caused by a covered vaccine by filing a petition in the U.S. Court of Federal Claims, which then appoints a special master to hear the claim. Anti-vaccine advocates will point to their testimony at these proceedings as proof of their expertise, however as the Court of Appeals for the Federal Circuit discussed, the special masters are not required to apply the traditional Daubert standard for the admissibility of scientific evidence. Cedillo.

Colorado Vaccine Guidelines & Requirements

Colorado’s vaccine requirements are set forth in the Code of Colorado Regulations, promulgated by the Disease Control and Public Health Response Division of the Colorado Department of Public Health and Environment. Specifically, 6 CCR 1009-2 requires a series of vaccines to attend either child care, public or private schools, including Hepatitis B, Tetanus, Diphtheria, MMR, and others. The Department of Health website has more information, as well as more user-friendly charts of the immunization requirements for day care or school.

The regulation allows parents to seek a medical exemption, religious exemption or personal belief exemption, though no exemption applies in case of a disease outbreak.

School districts may have more specific information about the vaccines and consequences for non-vaccination. Here is a link to the Academy D-20 District’s guidance, and how to apply for an exemption.

Courts Authorize Requiring Vaccines

U.S. Supreme Court

The U.S. Supreme Court has held that a state may constitutionally require the public to be vaccinated, as a “reasonable and proper exercise” of the state’s police power. Jacobson. Our constitutionally-guaranteed liberties do not prevent laws intended to protect public health:

“in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Jacobson, at 29.

A few years later, SCOTUS again upheld a state vaccine mandate. In Zucht, the Court dismissed a challenge to a San Antonio, Texas ordinance requiring children to be vaccinated prior to attending school, holding that Jacobson:

“settled that it is within the police power of a state to provide for compulsory vaccination. That case and others had also settled that a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative."

Zucht, at 176.

In Troxel, the U.S. Supreme Court held that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children,” and rejected a state law which allowing courts to order grandparent visitation against the will of the parents merely by finding it was in the “children’s best interests.”

Anti-vaccine parents have argued that Troxel prohibits courts from applying the best interests of the children standard to allow one parent to vaccinate their children against the other’s wishes. But this has been rejected by every court considering it, holding that Troxel prioritizes the wishes of fit parents against third parties. In a disagreement between two fit parents, each of whom has the same fundamental right to raise their children, Troxel does not apply.

Colorado Denies Medical Decision-Making to Anti-Vaccine Parent

In McSoud, the trial court ordered joint decision-making except for religious upbringing and medical care, where the father had sole decision-making. While on appeal the court primarily addressed religious decision-making, the decision did also address vaccines.

The parties had previously agreed to share decision-making, but before the hearing, conflicts had developed. The special advocate (the precursor to a Child & Family Investigator) had recommended against joint medical decision-making due to “particularly serious disputes.” In one example, a “severe and prolonged dispute” over vaccines resulted in the court setting a hearing, although the parents reached an agreement that time without the hearing.

The Court of Appeals referenced the trial court’s findings as follows:

“The court concluded that shared decision-making regarding medical care was not in the child’s best interests. Citing the special advocate’s finding that providing medical care consistently and under the advice of a qualified physician was in the child’s best interests and that father was more likely to follow such advice, the court allocated decision-making responsibility for the child’s medical care to father.”

McSoud, at 1214.

The appellate court did not address the pros or cons of vaccines, nor cite any specific facts or arguments from the parents on the issue of vaccines, but upheld the trial court decision as being reasonable and supported by the record.

Religion Against Vaccine - Vaccines Win

The Colorado Court of Appeals held that when parents have joint decision-making, and one parent is seeking to modify that to sole medical decision-making due to the other parent’s anti-vaccine stance, the endangerment standard set forth in [sv slug="crs-14-10-131"](2)(c) applies. In Crouch, the mother objected to vaccines on religious grounds, and the trial court found that “failure to vaccinate endangers the health of the children.”

Endangerment is already hard enough to prove, but the trial court denied the father sole decision-making, holding that providing vaccines to the children would infringe the mother’s liberty, thereby triggering the strict scrutiny standard and a showing of “substantial harm.”

The father appealed, and the Colorado Court of Appeals reversed, holding that no showing of “substantial harm” was required before giving him sole decision-making over vaccines:

“A parent’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents… when allocating decision-making responsibility between the child’s parents… the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.”

Crouch, ¶ 27.

For a complete discussion of the Crouch case, see our blog post Vaccines vs. Religion in a Colorado Child Custody Case.

Other State Decisions on Immunizations

Family law courts in other states have been far less reticent about taking a stand on vaccines. In cases where the court otherwise awarded joint decision-making to two fit parents, courts in several states have found a parent’s anti-vaccination stance justifies awarding sole medical decision-making to the pro-vaccine parent. But the opposite is not true – research has found no published appellate family law decision where a court has ordered joint decision-making, but given the anti-vaccination parent sole medical decision-making.

And in some of those cases, the courts did not hold back their disdain for the anti-vax position:

• The pro-vaccine father’s “behavior showed that he was a proponent of the reasonable use of traditional western medical practices.” Gammon.
• The mother’s anti-vaccination stance was “unorthodox” and a display of “poor judgment.” B.C.S.
• “Iowa courts have historically favored a parent who provides immunizations when determining which parent should have physical care of the child.” Asefi.

State Courts Issuing Pro-Vaccine Decisions in Child Custody Cases

Note that this does not purport to be a fully comprehensive list of every state court which has made a decision in favor of immunizing children, but when researching the issue for a pro-vaccine client, these were the ones which seemed most helpful. If anyone is aware of any legislation or other appellate decisions (published or unpublished are okay, but just no trial court decisions or other anecdote) pertaining to vaccines in family law, I’d love to read them, so please drop me a line.

• California. Price. (Court ordered anti-vaccine mother to immunize children, holding that best interests of the children controlled over her religious exemption from state’s immunization statute).
• Florida. San Marco. (Court held the mother neglected child’s medical care by missing several vaccines – mother not anti-vaccine, and provided other vaccines to child).
• Illinois. Lillig. (Court awarded sole decision-making to pro-vaccine parent, rejecting anti-vax parent's argument that it “discriminated against alternative medicine.”)
• Indiana.
  • Young. (Court awarded sole decision-making over vaccines to the pro-vaccine parent).
  • G.G.B.W. (Parenting agreement required mother vaccinate children if required by school and they would be denied admission. It was contempt for mother to unilaterally seek religious vaccine waiver from school, even though kids were not denied admission).
• Iowa.
  • Asefi. (Court awarded sole decision-making to the pro-vaccine parent).
  • Rodgers. (Court set aside as violation of public policy the parents’ agreement that neither could vaccinate children over objection of the other).
  • Lambert. (Court awarded pro-vaccine parent physical custody based largely upon other parent's embrace of alternative medicine, and found it “significant” that pro-vaccine parent would immunize child).
• Maryland. K.Y.-B. (Court ordered the state could approve a child’s vaccines because “State’s compelling interest in protecting the health of the Child outweighs Mother’s belief that vaccination contravenes her faith.”)
• Michigan. Matheson. (Court ordered child to be vaccinated in accordance with pediatrician recommendations).
• Missouri. Gammon. (Anti-vaccine mother had signed a school vaccine waiver against the father’s wishes, court awarded sole medical decision-making to the father).
• New Jersey. J.B. (Court ordered that Child Protective Services could immunize child in Department's care over parent's religious objections).
• Oregon. Botofan-Miller. (Court switched custody from mother to father due to several concerns, including violating trial court order to vaccinate the children).
• Pennsylvania. B.C.S. (Court awarded sole decision-making to the pro-vaccine parent).
• Tennessee. Pankratz. (Court awarded sole decision-making to the pro-vaccine parent).
• Texas. Garcia-Udall. (Court awarded sole decision-making over vaccines to the pro-vaccine parent).
• Washington, D.C. Downing. (Court appointed a decision-maker and removed tie-breaking authority over joint decisions from anti-vaccination father who vetoed HPV vaccine for daughter).

Other Vaccine Decisions

Basic research uncovered no reported appellate decision where a court awarded sole medical decision-making to an anti-vax parent instead of a pro-vax parent because of the anti-vaccine stance, but again, if there are any such decisions, please let me know. However, there are a couple of appellate decisions from other states which address vaccines in a family law setting, even if they cannot necessarily be described as pro-vaccine or anti-vaccine:

• Alaska. Co. (Despite “concern” over mother not getting children vaccinated, court awarded her sole custody as she had more mature parenting approach and was more likely to foster strong relationship with other parent).
• New Jersey. Scott. (Unpublished decision upholding trial court denial of mother's request to administer Covid-19 vaccines to children based upon father's concerns, despite medical evidence presented). See blog post discussing this case.
• North Carolina. Meduri. (Parents had joint decision-making, anti-vaccine mother brought contempt action against the father for unilaterally vaccinating the children. Court found no contempt on the grounds that the vaccines were not harmful).

Can I Lose Custody for Not Vaccinating?

The answer is a qualified "yes." If you mean can you lose custody if you yourself are not immunized, those cases are rare, and typically reserved for children whose medical condition makes them vulnerable to an unvaccinated parent. If you mean losing custody for not vaccinating the children, you could certainly lose medical decision-making in most states, but I have not found examples of a parent actually losing parenting time.