What Happens When Divorced Parents Don’t Agree on Immunizations?
As a family law attorney, I most commonly litigate custody cases involving issues such as visitation schedules and child support calculations. In addition to these disputes, however, I have noticed another trend on the rise with custody issues. Legal battles between separated and divorced parents increasingly involve disputes over immunizing their children, as a result of growing public debate over possible negative health effects from immunizations.
The argument against immunizing children first took hold in 1998, when a British doctor published a study associating some children’s vaccines with the development of autism. Analysis of the study revealed that it had been poorly conducted, however, and the study was retracted and the physician’s medical license revoked. A recent investigation of the study by British medical journal BMJ even concluded that the physician behind the study had misrepresented or altered the medical histories of patients whose cases formed the basis of the study. In addition, a report published on July 1, 2014 in the official journal of the American Academy of Pediatrics (AAP) screened more than 20,000 scientific titles and 67 papers on vaccine safety, and the report found no evidence that immunizations cause autism. The report also indicated serious and harmful reactions from vaccines are extremely rare. Despite these recent revelations, however, the 1998 study was still enough fodder for some parents to question the benefits of immunizing their children.
The Centers for Disease Control and Prevention (CDC) and the AAP both urge parents to have their children immunized. They insist that the vaccines are not toxic and have no connection with the development of autism. The CDC attributes recent outbreaks of childhood diseases such as whooping cough (pertussis) and measles to parents failing to immunize their children.
I have seen many separated and divorced parents in Clark County argue about whether they should immunize their children, and some of them seek to settle this question through the court system. I often advise parents to settle these matters privately instead of pursuing potentially drawn-out legal battles, which could possibly delay their children entering the school system as a result of their unvaccinated status. For parents who insist on addressing this issue through the courts, however, it is important that they know their legal options.
Nevada law requires children to be immunized against certain diseases before being allowed to enroll in school, with two exemptions. Nevada Revised Statutes (NRS) section 392.435 excuses children from the vaccination requirement “because of religious belief or medical condition.” This is different from other states that allow children to attend school without vaccinations due to preference or personal belief.
There are very limited ways that parents can meet the state’s exemptions for vaccinating children. These include:
- Medical Condition Exemption: The medical condition exemption requires a licensed physician to provide a signed statement to the school board explaining why immunizations would be medically harmful to the student.
- Religious Exemption: In order to obtain a religious exemption, the parents must submit a statement to the school board explaining why it is against their religion to have their children immunized. Some states and at least one federal court are not in favor of religious exemption, finding that refusing to immunize children is neglect, not a free exercise of religion.
A unique problem arises when divorced parents who share legal custody disagree about whether their children should not be immunized due to religious reasons. As there has been no definitive court ruling on this issue in Nevada, I usually make the following recommendations:
- Consider the terms of the final divorce decree or custodial order. If one parent was given the authority to make medical decisions for the children over the other, that parent’s religious beliefs will generally be honored by the family law court.
- Determine parental involvement. This very issue was raised in a recent court case in the state of Virginia. After determining that the final divorce decree gave both parents equal say in making medical decisions for the children, the court weighed which parent was most involved in the children’s medical care. The court decided that the mother, who was opposed to vaccinations, was more involved than the father and granted her right to an exemption from immunizations.
- Remember the best interests of the children. If parents with joint legal custody are given equal decision-making authority for medical decisions, and if both are equally involved in providing medical care for their children, it is likely that the best interest of the children will serve as the determining factor in a court case. Protecting children from disease and keeping additional students safe and healthy is in a child’s best interest, so all other things being equal, a judge would likely rule for the children to be vaccinated.
As a mother of three, my personal view is that immunizations, absent a medical allergy, are in the best interest of a child. Children who don’t receive specific vaccinations can be at risk of catching the measles, whooping cough or worse. Everyone has the right to express their viewpoints in our court system, however parents need to keep the law in mind if they choose to challenge immunizations in court.