Judge holding a vaccine syringe in a Colorado Courtroom

How to resolve conflicts when parents with joint decision-making cannot agree has become a hotly-litigated area of family law in recent years, with much of the litigation focusing on the choice of the child’s school, and on child immunizations. The Colorado Court of Appeals recently decided the E.E.L.-T. case, which concerned whether a child should receive a Covid-19 vaccine.

Vaccines for children after a divorce are an increasingly contentious parenting issue, even before the Covid-19 vaccine, and we have an entire Child Vaccines & Child Custody article in the Colorado Family Law Guide, looking not just at Colorado, but other states as well. (Quick take – virtually every single reported decision, in every state I’ve seen, favors the pro-vaccine parent).

In E.E.L.-T., the parents had joint decision-making over their minor child, including shared medical decision-making. However, in 2021 they disagreed on whether the child should receive a Covid-19 vaccine. The father, who wanted the child to be vaccinated against Coronavirus, filed a motion asking the trial court to either (1) give him sole decision-making over medical issues in general, or over the Covid-19 vaccine specifically, or (2) for the judge to simply order that the child have the Covid-19 vaccine.

Trial Court Covid-19 Vaccine Hearing

The mother objected citing her “deep concern” over the child receiving the Covid-19 vaccine, so the trial court conducted a contested hearing, hearing the mother’s concerns, as well as testimony from three physicians:

  • The child’s pediatrician (who curiously testified as a regular “lay” witness rather than an expert), called by the father, who testified that in her personal experience as a clinician, she had not encountered a child having serious adverse reactions from the Covid-19 vaccine.
  • A pediatric infectious disease specialist (who also testified as a lay witness), called by the father, who similarly testified to the absence of adverse reactions, and also that the Centers for Disease Control and Prevention (CDC) recommended that children five and older receive the Covid vaccine.
  • Dr. Peter A. McCullough, an internal medicine physician and cardiologist, called by the mother, who testified that the Covid-19 vaccine had “alarmingly high rates” of adverse effects, and the risks of that vaccine outweighed the benefits. (According to Wikipedia, Dr. McCullough has contributed to Covid misinformation, including promoting the hydroxychloroquine and ivermectin as treatments, and the American Board of Internal Medicine has recommended revoking his board certification).

The trial court found endangerment – specifically, that the child would be endangered by not having in place a parent with the ability to make decisions on Covid-19 treatment and vaccines, particularly as new Coronavirus variants were emerging regularly. (Note that the endangerment is somewhat attenuated – the court did not rule that foregoing the vaccine was itself endangering the child, just that the child would be endangered without having in place a parent who could make treatment & vaccine decisions).

The court therefore granted the father’s motion, ordering that the “child may receive” the Covid vaccines and subsequent boosters, and if the parties could not agree on the specific type, it would be the Pfizer vaccines, and the parties otherwise retained joint decision-making on medical issues.

Court of Appeals – Endangerment Not Required to Break Impasse Between Parents

Man and woman playing tug of war with rope.

The mother appealed, arguing that the endangerment finding required to alter decision-making was flawed. Father conceded that the magistrate altered decision-making, but argued that the ruling was well-grounded.

The Court of Appeals considered that the issue before it was not the court’s power to break the impasse, but “whether the district court must find endangerment before breaking an impasse between parents with joint decision-making responsibility.” E.E.L.-T., ¶ 1.

The appellate court disagreed that the trial court had somehow modified the parents’ joint decision-making, as the judge explicitly retained joint decision-making other than ordering that the Covid-19 vaccine be administered. In other words, the judge broke an impasse due to the parents’ disagreement, just like the appellate court approved a judge making the decision about a child’s school choice in the Thomas case we discussed three years ago.

Court Deciding an Impasse Not Modification of Decision-Making

When a court orders a specific decision be made to break an impasse, that is not a modification of decision-making authority:

“When parents who share joint decision-making cannot agree on a particular decision, however, the court has authority to break the impasse by making the decision for them. Thomas, ¶ 38. In doing so, the court need not – indeed, cannot – take the affirmative step of allocating decision-making authority to itself because it is not a party.”

E.E.L.-T., ¶ 20.

The trial court merely “broke the tie”, rather than granting itself decision-making authority.

No Requirement of Endangerment Before Deciding Impasse

Since a court casting the “tie-breaking” vote was not a modification of decision-making, proving endangerment is not only unnecessary, but pointless:

“Indeed, it makes no sense to require an endangerment finding before a court exercises its impasse-breaking authority. If the court were able to find endangerment, it would not need to make the decision for the parents; the court, instead, could simply modify decision-making authority and make one parent the sole decision-maker. Moreover, if endangerment were required, the inability to break the impasse would effectively grant veto power to a joint decision-maker who prefers the status quo without any consideration of the guiding principle in these cases – the best interests of the child.”

E.E.L.-T., ¶ 26.

(Side note – the observation that requiring endangerment to break an impasse would necessarily give veto power to the parent who wants to block a course of action is an argument family law attorneys often make in decision-making cases).

“Best Interests of the Child” Standard to Order Child Vaccines

Instead of endangerment, the trial court can break an impasse between parents whenever it finds that making the decision would be in the child’s “best interests” a much easier standard to prove than endangerment. Note that while this decision pertained to a child receiving the Covid-19 vaccine, the holding would apply to any shared decision where parents disagree – medical, school, and more.

On a related note, the mother took issue with the trial court allowing the child’s pediatrician and the infectious disease specialist to provide expert testimony in the “guise” of personal knowledge and experience, despite being called to testify as non-experts. Since the trial court made clear that the CDC was the authority on the issue of administering Covid-19 vaccines to children and not any of the doctors, even it was error to allow that testimony, any error would be harmless.

Finally, I realize the feature image at the top of this post is hardly a work of art, and has inaccurate depictions of both the U.S. and Colorado flags. Rather than using a stock photo, I created that image using DALL-E, and this was the best of a lot of efforts – clearly my lack of artistic talent is also true when trying for an AI image of a judge holding a Covid-19 vaccine.

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Covid-19 vaccine

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