Vaccines and Family Separation

This guest post is offered by Kristin Pryor, rising Regent Law 3L and Spring 2020 Family Law student, who completed an Independent Study on child vaccines and parental rights entitled Vaccination and the Effect on Custody When One Parent Opts Out:

With vaccines becoming a highly contested topic today, what happens when a couple separates and one parent decides to vaccinate in violation of a former agreement not to vaccinate? Well, it depends on why the parents initially decided not to vaccinate.

While vaccines are required for school, parents may oppose vaccination for various reasons. Some children have valid medical contraindications that prevent vaccination, some oppose vaccination on religious grounds due to the inclusion of foreign fetal and animal DNA, and some parents object on philosophical grounds because they desire their child to have lifelong immunity acquired naturally for diseases like chicken pox. Whatever the reason may be, parents have the right to decline vaccines for their children, because the Supreme Court of the United States has clarified that parents have a fundamental right to direct the upbringing of their children. Every state offers a medical, religious, and/or philosophical exemption that parents may exercise for their child to gain entry to school. But can one parent change his or her mind after they separate?

The answer to that question depends on the reasons behind the couple’s decision not to vaccinate and the reasons behind the change of heart. When a conflict over vaccination arises in family court on the basis of religion, courts may rule differently. Some courts find that greater protection must be afforded to parents exercising their fundamental rights to raise their children according to their religious tenets rather than the desire to protect public health and welfare. Some courts evaluate the sincerity of the parent’s belief and will conduct an inquiry into its authenticity. Factors to be taken into consideration include whether the belief is rooted in medical or scientific concerns rather than religious, if other children of the couple are vaccinated, and if their religious affiliation actively prohibits vaccination, although courts have held that requiring a parent to belong to an official religious organization to qualify for the exemption is unconstitutional and violates the Establishment and Free Exercise Clauses.

Parental rights and religious freedom must be protected.  In most courts, for a religious exemption to be upheld, the parent must hold a religious belief against vaccination rather than medical or moral beliefs in order to justify the religious belief exemption. While the court can question the authenticity of the belief against vaccination, courts have held that they may not conduct an inquiry into the sincerity of a parent’s religious beliefs when used as the basis for objection to vaccines. The same protection, however, does not exist for philosophical exemptions. Philosophical exemptions are not afforded constitutional protection, even if the beliefs are sincerely held and made in good faith.

When it comes to personal and religious beliefs involving their children, parents are presumed to act in the best interests of their children. Parents have the right to select a religion for their child and bring their child up in that religion, even if the decision has permanent and lasting effects on the child. When a couple separates and requests the court’s intervention in determining the best interest of the child, virtually every decision comes under scrutiny and separated parents may find that their former agreements regarding religion are no longer binding or enforceable due to vagueness. However, courts have enforced agreements that were placed in writing. Courts must examine the reasons behind a parent’s refusal to vaccinate and determine the credibility of a parent’s change of heart when the decision was made jointly and based on religious beliefs.

Ultimately, courts must balance the freedom of religion with the right of parents to direct the upbringing of their child as they see fit and with the best interest of the child.  This parental authority is part of restoring family strength, and it will generally be given due weight by a judge, as a fit parent is presumed to be acting in the best interest of his or her child.  This doctrine advances and fosters family restoration - even when families separate.

Download Kristin’s scholarly paper Vaccination and the Effect on Custody When One Parent Opts Out now for more information.