The Volokh Conspiracy
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From Burch v. Lipscomb, decided yesterday by the Kentucky Court of Appeals (Judge Glenn Acree, joined by Judges Susanne Cetrulo and Jeff Taylor):
Danielle Burch … objected to vaccinating her children based on her religious convictions, while joint custodian Paul Lipscomb … desired that his children be vaccinated….
The parties divorced on June 15, 2018. In accordance with the decree of dissolution, they share joint custody and equal timesharing of their two minor children, aged eight and six. Throughout their marriage, and through the divorce proceedings, the parties agreed to decline required immunizations for their children on religious grounds. They had executed affidavits in New York and Georgia declining vaccinations for their children on religious grounds. On October 12, 2018, after their divorce, both parties executed the Commonwealth of Kentucky's form for declining immunizations on religious grounds.
However, two years later, on June 30, 2020, Father filed a motion for an order permitting him to vaccinate the children. Mother objected, and a hearing was conducted by the Anderson Family Court to resolve the question.
At the hearing, Father testified that he originally agreed not to vaccinate the children because he was leaving for deployment with the military and was unable to meet with the pediatrician. He thought there was an understanding the parties would just delay the vaccines. But, after he finished his military service, he began discussions with Mother regarding vaccinations for the children.
Father stated that when he signed the vaccination declination affidavit he had doubts about the development of certain vaccines by use of aborted fetal cells. Now he believes the use of aborted fetal cells is so far removed from the process of developing vaccines that his concerns no longer exist. He believes it is appropriate to vaccinate the children. He wants to follow the advice of the children's pediatrician to vaccinate.
Mother vehemently objects. She argues doing so violates her firmly held religious convictions opposing the use of aborted fetal cells in the manufacture and design of the vaccines…. Mother argues there was an understanding between her and Father that the children should not be vaccinated and produced multiple documents the parties signed to that effect.
The family court found it was in the children's best interest to be vaccinated. It reasoned that, on balance, the children's health and welfare outweighed the religious beliefs of one parent. The court ordered that the parties consult with the pediatrician to craft a "catch-up" schedule bringing the children current on vaccinations and other immunizations, or, if the parties were able, to agree to alternative vaccines that could potentially be utilized that do not use aborted fetal cells in their development and design….
Citing Kentucky law, Mother argues the family court cannot order "immunization[s] of any child whose parents or guardian are opposed to medical immunization against disease, and who object by a written sworn statement … based on religious grounds[.]" However, Father responds that the statute refers to the plural "parents," not the singular. He therefore argues that when one parent objects, and the other parent does not, the court must decide. We agree because this is in harmony with our family law jurisprudence.
Jurisprudence in this area already takes into account the constitutionally protected rights of parents to raise their children free of undue governmental interference. The cautions and generally applicable safeguards of that jurisprudence embrace Mother's specific claim under the First Amendment to the federal Constitution….
The starting point is that these constitutionally protected "right[s] and liberty interest[s] necessarily exist coterminously, and jointly, in two people—the child's mother and the child's father." Here, we have an impasse between Mother and Father and our jurisprudence addresses such circumstances.
"[A] family court properly exercising its jurisdiction has the inherent ability to 'break the tie' when joint custodians cannot agree." Furthermore, once the courts are involved, "equal decision-making power is not required for joint custody, and parties or trial courts are free to vest greater authority in one parent even under a joint custody arrangement." …
The family court … conduct[ed] the hearing as required, heard testimony from both Mother and Father, and found that it would be in the children's best interest to be vaccinated in accordance with their pediatrician's recommendations and Centers for Disease Control and Prevention (CDC) guidelines. The family court noted that the health and welfare of the children is this "[c]ourt's priority even when balanced against the proclaimed religious beliefs of one parent."
Under analogous circumstances involving First Amendment objections by one parent, this Court reached the same conclusion. Young v. Holmes, 295 S.W.3d 144 (Ky. App. 2009). In Young, as in this case, the family court made an informed decision after a hearing that was based on the children's best interest. We cannot say the family court's factual findings lacked the support of substantial evidence, and we cannot conclude that it made any legal error in reaching its decision….