The battle rages on between those who believe that it is perfectly safe to vaccinate their child, and those who believe that it is not safe to vaccinate. If you are involved in a divorce or child-custody dispute, the decision whether to vaccinate your child may not be your decision to make.
While one parent may have the primary or sole physical custody of a child, most parents enjoy having joint legal custody of their child. When parents share joint legal custody, Michigan law provides that “[t]he parents shall share decision-making authority as to the important decisions affecting the welfare of the child.”
You probably don’t need to discuss with the other parent whether to give your child a coloring book at your house, or whether they can have a friend sleep over. But, in Michigan, the courts have consistently ruled that parents must discuss and agree on “important decisions” involving medical, educational, and religious issues. See Lombardo v Lombardo, 202 Mich App at 157-8 (1993); and Shulick v Richards 273 Mich App 320 (2006). The decision of whether to vaccinate your child may involve all three of these important issues.
If parents cannot agree on whether to vaccinate their child, they must seek the court’s help to resolve the dispute.
If you are a parent who does not wish to vaccinate your child, you likely know that you can file a vaccine exemption form with your child’s school based on medical, religious, or philosophical objections. In January of 2015, this process changed to require waivers based on religious or philosophical objections (which make up the vast majority of exemptions) to be educated by local health workers about vaccines and the diseases that the vaccines are intended to prevent. Also, as part of the vaccine exemption waiver, parents must now sign a statement that acknowledges that they have been informed of the risks of not vaccinating their own child and the risk of their decision on other children.
Sample waiver form: http://www.michigan.gov/documents/mdch/Sample_Waiver_485823_7.pdf
“What about my constitutional rights as a parent?” – “What about my child’s constitutional rights?”
There are only two United States Supreme Court cases that directly address mandatory immunization laws. In Jacobson v Massachusetts, 197 US 11 (1905), the Supreme Court ruled that the State of Massachusetts could enforce laws requiring compulsory smallpox vaccinations. The court found that the mandatory vaccination law only interfered with individual liberty interests when “necessary for the public health or safety.” Id at 29. The Court took up the issue again in 1922, and upheld a law that allowed schools to prohibit the attendance of persons who had not been vaccinated against smallpox. Zucht v King, 260 US 174 (1922). Although a short opinion, that case relies on the state’s broad police power to protect public health and safety concerns.
More recently, the State of New York passed a law requiring that all school children be vaccinated prior to attending public schools. The lower courts ruled that the law did not violate children’s constitutional rights. In October of 2015, the United States Supreme Court declined to hear that case. Effectively, the Supreme Court telegraphed that is does not believe that mandatory vaccination laws violate children’s constitutional rights.
If you want to seek the court’s support for your decision not to vaccinate your child, know ahead of time that your personal feelings and opinions will not be enough to convince a judge that your position is in your child’s best interests. At the very least, you will need an expert medical witness who supports your position. You may also need an educational expert or an expert in your particular faith to support your position. Your attorney can help you determine what witnesses meet the legal criteria to be considered “expert” witnesses in your case.
If you are a parent who wishes to have your child vaccinated over the objections of the other parent, you also need more than your personal feelings and opinions to convince the court that your position is in your child’s best interests. However, medical expert witnesses may be easier for you to come by – most commonly that witness is your child’s own treating pediatrician. Other expert witnesses may include health department officials and school officials. At this point in time, the law – and the reliable, relevant, and admissible medical data – appear to be in your favor on this issue if the request for a vaccination waiver is based on religious or philosophical objections alone.
If your case has to go to trial, and a judge is required to make a ruling on your child’s behalf, that ruling will be enforceable. A parent who vaccinates, or refuses to vaccinate, in violation of a court order, may face additional penalties and sanctions. In extreme cases, a refusal to follow the court’s orders may result in a change in custody or the implementation of supervised parenting time.
The court absolutely has the power to make you vaccinate your child if it is in the child’s best interest.
photo by Carol E. Davis