Doctor giving vaccine to little girl.

Disputes over Child Vaccines

As we have discussed repeatedly in prior blog posts, the issue of child vaccines is getting more contentious each year. And as an increasing number of people show a willingness to act contrary to medical advice, combined with many states treating Covid vaccines different from other childhood immunizations, it’s perhaps inevitable that shots are the cause of an increasing number of parenting disputes in family law cases. For a more thorough discussion of immunizing children in Colorado child custody cases, see our Child Vaccines article in the Colorado Family Law Guide.

And thus far, while anti-vax parents have had success in state legislatures, in family law courts the results have been the opposite, with decision after decision coming down which treats unvaccinated parents less favorably, or awards medical decision-making to pro-vaccine parents in case of dispute. In short, while elected politicians may go one way, parents in child custody cases have been consistently on the child of child vaccines.

Kentucky Court Orders Children Vaccinated

As we discuss in our vaccine article, the common remedy in immunization disputes is to award one parent decision-making authority over whether a child receives shots (invariably the pro-vaccine parent).

But in a recent case from the Kentucky Court of Appeals, the court went a step further, actually ordering the child to be vaccinated. In Lipscomb,1Burch v. Lipscomb, No. 2021-CA-0614-ME (Ky.App. Nov. 19, 2021) (Unpublished decision). the parents had joint custody and equal parenting time, but the mother objected to the children being vaccinated on religious grounds (Colorado courts have also had to grapple with religion vs vaccines in parenting cases as well).

Court orders child vaccines

At the time of divorce, both parents executed a Kentucky state form for declining child immunizations on religious grounds. But two years later, the father filed a motion seeking permission to vaccinate the children, arguing that he was never actually against child vaccines, but thought the religious exemption form was merely to delay vaccines, as he was in the military getting ready to deploy, so did not have time to meet the pediatrician. He testified that he wanted to adhere to the pediatrician recommendations regarding vaccines.

The mother’s objection was based upon the vaccines using aborted fetal cells in their design & manufacture, so administering them violated her religious beliefs. She further provided multiple documents showing that both parents had an understanding the children would not be vaccinated.

The trial court found it was in the children’s best interests to be vaccinated, and that child vaccines outweighed the religious beliefs of one parent. It therefore ordered the parents to meet with the pediatrician to craft a “catch-up” schedule to bring the children current on their immunizations.

The mother appealed, arguing that Kentucky law (KRS 214.036(1)(b) prohibited courts from ordering “immunization of any child whose parents or guardian are opposed to medical immunization against disease, and who object by a written sworn statement… based upon religious grounds.”

The appellate court accepted the father’s argument that the statute refers to “parents” in the plural, not “parent” in the singular, so when one parent objects and the other parent does not object, the court must make the decision. That statutory provision prevents courts from overriding the joint decision of both parents against immunization, but not when the parents disagree: “A family court properly exercising its jurisdiction has the inherent authority to ‘break the tie’ when joint custodians cannot agree.”

The court affirmed the trial court’s order for the children to be vaccinated:

“Because Mother and Father, as joint custodians, failed to agree on this consequential issue concerning medical decisions for their children, Father engaged the court and asked that it perform its role. The family court did conduct 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 ‘court’s priority even when balanced against the proclaimed religious beliefs of one parent.'”

Thus far, every reported decision I’m aware of where a court has addressed disputes over child vaccines between two fit parents, the court has sided with the pro-vaccine parent. However, there must be at least some appellate decisions where the anti-vaccine parent prevailed, even if only a few, so if anyone is aware of any, please let me know and I would love to read and write about such decisions (note – looking only for appellate decisions, not anecdotal experience from trial courts).

(Note – as always, when we report on an out-of-state decision, we do so only because it may be of interest to Colorado practitioners. We are not Kentucky attorneys, and cannot advise clients on legal matters outside of Colorado).

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