With the COVID-19 vaccine already approved and distributed to children 12 years and older and the pending FDA approval and adoption of the vaccine for children between the ages of 5 and 11 years old, it is no wonder that the arguments between joint decision making parents, where one parent is pro-vaccine and the other parent is anti-vaccine, are increasing.
ABOUT JOINT DECISION MAKING IN COLORADO
Joint decision making ensures that neither parent is permitted to make unilateral major decisions for a child. Major decisions include education, health care, extracurricular activities, religious tutelage, etc. Whenever a major decision is needed, the parents must mutually agree before moving forward.
Colorado courts are responsible for determining parental responsibilities including parenting time and decision making, in all divorce cases that involve children under the age of 18. This includes how major decisions are made and by whom.
The allocation of the decision making is different for each divorce case and dependent on a number of factors, but all cases are allocated based on the best interest of the child(ren). Joint decision making between both parents is the preferred allocation in Colorado unless there are circumstances that would make joint decision making inappropriate, such as a history of substance abuse, domestic violence or neglect, and/or mental illness. Courts may appoint a third party professional to assist with the decision making allocation in these cases.
WHAT HAPPENS WHEN PARENTS DON’T AGREE
When parents are allocated joint decision making responsibilities and they can not agree on major decisions, they could ask the courts to intervene and make the decision on the issue, or they could request the courts revise the allocation from joint to sole decision making. Unfortunately, there are challenges with both options, especially when it involves decisions related to health care. Due to some conflicting cases in Colorado, judges are divided on whether or not they have the authority to make the decision on the issue for the parents. In addition, in order to change an existing joint decision making order, the court must determine that the initial order endangers the child(ren) in some way, Under C.R.S. § 14-10-131.
COVID-19 VACCINES AND JOINT DECISION MAKING
Health care providers in Colorado will not administer a COVID-19 vaccine to any child under the age of 18 without a parental signature. Colorado courts and divorced parents with joint decision making, have been faced with an increased number of challenging questions involving the health and safety of children since the pandemic first started in 2020. Currently, there are no published cases in Colorado related to whether or not a child should receive the COVID-19 vaccine when joint decision makers disagree on the subject. There are, however other vaccination cases where the joint decision making order has been overturned, allowing for the vaccination of the child(ren), i.e. In re Marriage of Crouch, 490 P.3d 1087 (Colo. App. 2001).
The Crouch case has set a precedent for COVID-19 cases moving forward, that a parent’s refusal to vaccinate a child against COVID-19 can constitute as endangerment to that child, and can justify a change in decision making from joint to sole if the objecting parent objects due to religious beliefs. It is important to note that parents that object to the COVID-19 vaccine due to health concerns, may have a better argument that their decision is protecting the child, not endangering them.
WHAT PARENTS SHOULD DO WHEN A JOINT DECISION CANNOT BE MADE
Divorced parents will continue to face challenging decisions related to COVID-19 safety and protection for their children, including the decision of whether to vaccinate or not.
When there is a dispute between joint decision making parents related to the administration of the COVID-19 vaccine in their child(ren), it will be resolved on a case-by-case basis by the Judicial officer with little guidance from case law since the issues related to the COVID-19 vaccines have not been addressed by the Colorado Court of Appeals or the Colorado Supreme Court. In the event of a dispute about whether to vaccinate a child against COVID-19, courts may consider the following information:
- Is there an underlying health condition or concern that would make the child more susceptible to complications from COVID-19?
- How much parenting time does the objecting parent have? (joint, majority or minority)
- How much impact does the vaccination have on the school attendance of the child?
- What is the reason for the objection? (religious, health concerns, political, other)
The attorneys at Goodman and Wallce, P.C. recommend that parents who disagree over the COVID-19 vaccination for their child(ren) as well as any other major decision for which they have joint decision making, should first attempt to resolve disputes through mediation or outside of court. If the effort to resolve the issue still fails, parents should then seek to change the decision making order by filing a motion to modify decision making and should be prepared to argue that the prior allocation of decision making endangers the child. Goodman and Wallce, P.C. is here to help. Contact us today if you need assistance with your decision making allocation.