In Pennsylvania, custody cases are governed by the "best interest of the child" standard. This means that the Court will hold a child's best interests in the highest regard and will direct and order the parents or guardians to act in accordance with what it determines to be in the best interest of the child. Unlike physical custody which extends to which parent has care and control over the minor child on a daily basis, ensuring they are fed, sheltered, and cared for, legal custody involves the right to make major decisions on behalf of the child in regards to all medical, religious and educational aspects of their lives. In an overwhelming majority of custody cases in Pennsylvania, legal custody is "shared", meaning that mutual agreement by both parents is required when making such decisions on behalf of the child. When one parent is unreasonably difficult with making legal custody decisions, or where one parent uses legal custody as a weapon for manipulation and control, the other parent can ask the Court for sole legal custody. When a parent has sole legal custody in general, or for specific purposes (i.e. medical decisions), that parent is in control with respect to that issue or course of action.
With the rise in attention to vaccinations accompanying the COVID-19 pandemic, as well as increased publicity given to the "anti-vax" movement and vaccine naysayers, disputes over child vaccination has migrated from the fringes to the mainstream as a prominent custody issue. My colleague, Hillary Moonay, Esq., laid the groundwork nicely for this rising issue in both one of our earlier Family Matters blog pieces this year, and the Washington Post this month. Against this backdrop, my team and I have been more than prepared to handle an actual case first-hand once it arose.
It was a sunny Monday morning in August as I walked into the Bucks County Justice Center. I had been practicing family law for almost 10 years; however, this was going to be a first for me. My client (Father) was seeking permission to vaccinate the parties' eligible teenage children with the Covid-19 vaccine. Mother, on the other hand was fervently against it. It was clear that Mother's objection to the vaccine was not based upon a legitimate medical condition or religious belief.
I filed a Petition to Modify Custody on behalf of Father, asking for a narrow legal custody "carve out" so that Father would have sole power and authority to get the children vaccinated. It is important to note that Father did NOT request sole legal custody for all medical decisions; rather, he asked for just enough legal custody to administer the Covid-19 vaccine—nothing more, nothing less.
In trial, Father testified first about the children's health and religious affiliation, he went through the children's medical records showing that they are in good health, are up to date on their other vaccinations and that the primary care physician was recommending the Covid-19 vaccine for both children. Father testified that he had reviewed the recommendations from the World Health Organization (WHO), Centers for Disease Control and Prevention (CDC), and The American Academy of Pediatrics (AAP), and wishes to follow those recommendations and have his children vaccinated.
Mother, on the other hand, testified that: the WHO, CDC, and AAP were all wrong and that pediatric Covid-19 infections are being over-reported. She went on further to argue that, according to her "sources," there are thousands of dead and millions of sick Americans as a direct result of the Covid-19 vaccine, and that although the Pfizer BioNTech vaccine was approved for children aged 12-15, the "reality" is that this specific vaccine has not been produced yet. Although Mother admitted that there was no valid religious reason for withholding the vaccine for the children, she did argue that the children suffered from asthma, and as a result, Mother stated she was concerned.
This is where the story becomes a cautionary tale because that sliver of legal custody became the whole slice.
Unswayed by Mother's position, and despite the fact that Father was requesting a narrow "carve out" for the Covid-19 vaccine only, the Court stripped Mother of all of her power and control to make any medical decisions for her children and awarded Father sole legal medical custody.
In its findings, the Court admonished Mother for "endangering the welfare" of her children and stated that her failure to act to vaccinate the children constituted a "dereliction of her parental duties". These strong words are both a warning to the anti-vax parent, and also serve as a message of hope for the parents who want to have their children vaccinated but worry that the other parent is against it.
Ultimately, the Court's position could not be any more clear: that in the absence of any legitimate medical or religious issues, the Court will side with the parent who wants the children vaccinated. This is certainly true in Bucks County, where this case arose, but this case is also a good indicator as to what other judges in surrounding counties are likely to do. The reasoning is multi-layered. First, and foremost, Courts want children in school, and they recognize that in order to further that goal, as many eligible children as possible should receive the vaccine. Furthermore, courts tend to rely on established scientific principles and recommendations from experts, and because the Courts believe that public school vaccination mandates are on the horizon, and therefore, the vaccination might as well be ordered now because it will likely be mandated in the near future.
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