Parental Rights

Court Can Let Pro-Vaccination Divorced Parent Vaccinate Child,

even when the parents had originally agreed not to vaccinate, and one parent later changed his mind.


So held the Colorado Court of Appeals in In re Marriage of Crouch (opinion by Judge Pawar, joined by Judges J. Jones and Berger):

In Colorado, parents can elect not to vaccinate their children. But what happens when parents divorce and one parent later has a change of heart about vaccinating the children, while the other maintains a religious-based objection to vaccination? …

Mother and father divorced in 2017, and their parenting plan was approved by the court and incorporated into the decree. In relevant part, the plan provides for joint medical decision-making authority and that "[a]bsent joint mutual agreement or court order, the children will not be vaccinated."

In 2018, however, father had a change of heart about the children remaining unvaccinated. Father said that his position evolved after the parties' divorce when he researched the issue and concluded that the children should be vaccinated….

[The trial] court credited father's expert's testimony, rejected mother's medical-based objections, and found that the "failure to vaccinate endangers the health of the children." Recognizing that mother had also asserted a religious-based objection, however, the court went on to find that vaccination would interfere with mother's "right to exercise religion freely," and therefore imposed an "additional burden" on father "to prove substantial harm to the children" if they remained unvaccinated. The court ruled that father had not met this additional burden and denied his motion to modify.

The court went on to find, however, that if any of the children are wounded, thereby requiring a tetanus shot; if a disease outbreak occurs in the community preventable by vaccination; or if the children are to travel by air or internationally, such circumstances would constitute "substantial harm warranting a forthwith modification of decision-making." And because the court found that "air travel and international travel do create substantial harm," it prohibited the children from air travel or international travel unless they are vaccinated….

[We hold that the] court erred by imposing a heightened burden on father to show substantial harm … when considering his request to modify the allocation of decision-making responsibility between him and mother. Instead, once the court found, with record support, that father met his burden to show that the failure to vaccinate endangers the children's physical health, and that the risks of vaccination are "extremely low" as compared to its benefits of "preventing severe illness, permanent severe damage, and death," it should have proceeded to the second prong of the inquiry, namely, whether the harm likely to be caused by changing decision-making responsibility outweighed the benefit to the child.

UPDATE: The title originally said "Refusal to Vaccinate Children Can Count Against Parent in Custody Battle," but, as Dan Schmutter pointed out, that wasn't right: Though the debate in the case was technically about the allocation of decision-making authority as to vaccination (one aspect of legal custody), and refusal to vaccinate counted against the mother, the title made it seem like this was about custody writ large, such as with which parent the child would live or which parent would make a broad range of decisions. My apologies for the error; I've corrected the title accordingly.

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  1. IOW, don’t expect the courts to treat custody agreements as actually binding. You may give up one thing you want to get another thing, and later the courts will take away the thing you gave up.

    1. What do you expect? Marriage is between one man (i.e. Uncle Sam) and two civilians.

      1. Legal marriage is between the government (more state than federal) and two civilians.

        A lot of religious conservatives don’t get this (as we saw in the gay marriage debate) but it’s true. You can have whatever ceremonies you want, but the civil status of marriage, with the tax and inheritance rules, joint tenancy, community property (in some states), etc., is a pact between a couple and the government. And yes, the government can override your private arrangements with your spouse if you take the benefits. The government can also do it to protect your children (e.g., parents can’t sign a pact agreeing to molest or abuse their kids).

    2. What’s the problem?

      The father petitioned the court, it went through an open process, the batshit crazy person had ample opportunity to defend her position (and still has an opportunity to further appeal), etc., and both courts made decisions based on whatever law/sources/norms available.

      Isn’t that the way our courts are SUPPOSED to work?

      1. No, batshit stupid person.

        If the no-vaccination agreement would have been upheld if both persons had remained opposed to vaccination, then obviously the excuses used by the court weren’t really severe enough dangers to justify overriding the no-vaccination agreement. Therefore the no-vaccination agreement should have been upheld if only one had changed his mind.

        1. Well put, but aren’t there two hypothetical scenarios here with at least two important values (deference to parents and well being of child) at play?

          Scenario 1: Both parents definitely agree on something the court might think is not in the best interest of the child. Give this a 10 out of 10 on deference to parents and a 7 on well being.

          Scenario 2: Parents do not agree on something the court might think is not in the best interest of the child. Give this a 5 on the first value (or, if you want to put important weight on the idea that at first the parents agreed give it a 6) and you still have the 7 on the latter value. Now it seems the latter value can outweigh the former.

    3. There is a third party involved here.

      It’s not an agreement that only affects the parents.

    4. IOW, don’t expect the courts to treat custody agreements as actually binding. You may give up one thing you want to get another thing, and later the courts will take away the thing you gave up.

      Yes, Brett. Children are not property, like houses or motor vehicles or puppies. Parents can reach agreement about how they will treat them, but they can’t contract away their best interests.

  2. If it were just 150 years ago, the court would be mandating bloodletting instead of vaccination. Follow “the Science” ™.

    1. I look forward to your citation of a court from circa 1870 that ordered such a thing.

      1. @Eugene, has any court ordered cross hormone “therapy” for trans-gender identifying children? There might also be some court decisions regarding mandatory electro-shock therapy for homosexuals about 70 years ago. Anyway, Science is Progress!

        1. Given your and Ed’s ongoing fascination with gender dysphoria, you might be interested to read the English High Court judgment in R (Quincy Bell and A) v Tavistock and Portman NHS Trust and others. This is a huge judgment that came out last month about the ability of teenagers to consent to treatment.

            1. Your loss, because – #spoileralert – I think you’d like the result.

            2. In at least one SC case, the changing attitudes of the people behind living constitutionalism theory, as determined by a judge, can buttress a lack of definitive concensus in the US by relying on changes made in other countries.

          1. I’m not familiar with what they do in England, but IIUC this decision means that kids can’t take the stuff even with parental consent. If so that’s unfortunate.

            1. Yes, that’s right. Parents don’t own their children, and don’t have a legal right to do harmful things to them.

              This blog post explains it much better than I ever could:

              1. Nobody thinks that parents own children or that parents have a legal right to knowingly do harmful things to their children.

                But based on your link, it sounds like in the UK if there’s a dispute between a bureaucrat and a parent about what’s in the best interest of a child, the bureaucrat wins, and the child loses. That’s terrible.

              2. I mean, judges are great if you need someone impartial to arbitrate a legal dispute.

                But I have no idea why you would want someone impartial to make medical decisions for your children in the absence of a dispute.

    2. Hang on, your objection is that scientists sometimes disagree with what the state of knowledge was 150 years ago?

    3. In the past 150 years, not only have we learned better science, but we’ve learned better scientific methodology, which is pretty important: We know more about how science actually works now than they did then.

      Which is not to say that scientists never make mistakes; of course they do. I’m still inclined to trust people who spend years of their lives studying things to people who don’t.

      1. Scientist can make mistakes but when you mix bad science and public policy together, you get the Aktion T4 euthanasia program.

        1. No, that’s what you get if you mix bad science with fascism.

        2. Actually, no. You’re confusing two very different things.

          Science can answer the question of how to efficiently gas six million people. It cannot, however, answer the question of whether we should gas six million people; that’s a separate discipline. Do not confuse explaining how something is done (science) with whether it should be done (ethics). As with anything else, science can be used for both good purposes and bad ones.

            1. Oy gevalt! The Shoah was an exclusively Jewish historical experience and it needs to remain that way so Israel is morally justified as a Jewish ethno-state.

    4. Better to follow the science than to follow the preacher.

      What’s your claim? That scientists aren’t any more likely to be right than some random individual?

    5. Always awesome when anti-vaxxers lecture about science.

  3. The headline was shocking. However, after reading the language from the agreement …

    “[a]bsent joint mutual agreement or court order, the children will not be vaccinated.”

    Bad drafting. Look, I recognize that the “court order” was probably a necessary ‘out’ clause (what happens if there is some thing … like ebola … and there’s a vaccine … and you need a court order).

    But it left the door open. There was probably a better way to draft it, which I will leave to the transactional people out there, to prevent the parties from seeking the court order absent mutual agreement, or something. Who knows?

    Really, though, IMO a parenting plan that has a clause that says, “Without mutual agreement or [b]court order[/b]” is usually begging for further litigation.

    1. Eh, so much for html. And an edit function. 😉

    2. “[a]bsent joint mutual agreement or court order, the children will not be vaccinated.”

      Bad drafting. Look, I recognize that the “court order” was probably a necessary ‘out’ clause (what happens if there is some thing … like ebola … and there’s a vaccine … and you need a court order).

      Not quite seeing why it would be necessary to bake in an implementation detail like that. The parenting plan is ultimately just an agreement between the parents, right? If they later mutually agree they want to vaccinate for Ebola, going and getting a court order as part of acting on that mutual agreement seems outside the scope of the parenting plan.

      1. It’s the “or”. The parenting plan was adopted by decree.

        If they mutually agree, then guess what? They don’t need a court order.

        If they don’t … then …. wait for it … one of the parties can just get a court order.

        In effect, unless there is something I am missing, it’s pretty meaningless.

    3. It’s not clear to me what your criticism is. Isn’t the purpose of the “court order” business to cover a situation like this, where one of the parents changes their mind for some arguably valid reason?

      Aren’t these custody agreements supposed to be approved by the court?

      1. You misunderstand; it’s not a criticism of the agreement necessarily. As a normative matter, I agree with the court, especially in light of the language of the agreement.

        I suppose I was expecting something different given the attention EV gave this case? I don’t see anything particularly noteworthy here in terms of the law. Do you?

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