The Volokh Conspiracy

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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.