Scarcity of Cases Involving Vaccines

Unlike some states, Colorado has limited guidance from our appellate courts when it comes to dealing with vaccines, or childhood immunizations in divorce or other child custody matter. In two vaccine cases our firm has handled in the past two years, the ultimate orders issued were intended to ensure the children had their shots, but done in two very different ways:

In one case, we were at an arbitration instead of a hearing, and the arbitrator ordered joint medical decision-making except on the issue of vaccines, where the pro-vaccine parent was awarded decision-making responsibility over the anti-vaccine parent’s objection.
In a different case, the judge opined at a status conference that if the parents disagreed on vaccines, her practice was to defer to the children’s pediatrician (who was recommending vaccines), and in view of that, the clients settled the case by agreeing to follow those recommendations.

But these are anecdotal – random results controlling on the two immunization cases at issue, but not legally binding on any other case. So our firm’s experience is that courts tend to favor vaccines, and with Covid-19, that is probably even more likely. Other family law attorneys report seeing judges “punt” on the issue of vaccines – not directly ordering “no vaccines”, but prohibiting shots unless both parents agree, which effectively gives the anti-vax parent the ability to veto the pro-vax parent from getting shots for the kids.

Until this year, we had one case from the Colorado Court of Appeals addressing the issue of vaccines in child custody, McSoud,¹ where the court approved a trial court’s decision awarding medical decision-making the pro-vaccine parent. But there was not a lot of discussion from the appellate court about immunizations. Suffice it to say, then any decision is issued by the Court of Appeals which even mentions vaccines, family law attorneys pay attention, hoping for clearer guidance.

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Immunizations vs Religious Objection

Last month, the Court of Appeals issued a decision in Crouch,² which does not provide additional guidance on the pro-vaccine vs anti-vaccine position, but at least does clarify the burden of proof for the trial judge when deciding what to do when a parent’s desire to immunize children conflicts with the other parent’s religious beliefs. The issue addressed by the Court was:

“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?”
Crouch.³

Trial Court – Unvaccinated Children a Danger, but No Vaccines

Upon divorce, the parents agreed to joint parental responsibilities in their parenting plan, and in particular, agreed that “absent joint mutual agreement or court order, the children will not be vaccinated.” ¶ 4.

About a year later, the father’s position had “evolved”, and he wanted to vaccinate the children, but the mother remained opposed. To their credit, the parents tried to resolve the situation amicably, stipulating to a Parenting Coordinator with decision-making powers (PC/DM), but after becoming involved, the PC/DM determined that the issue was outside her area of expertise and likened it to “practicing medicine without a license.”

The Father filed a motion seeking (1) sole medical decision-making, and (2) permission to vaccinate the children in accordance with guidelines from the CDC (Centers for Disease Control and Prevention).

Father’s Arguments for Vaccinations

At trial, the father provided the following arguments in favor of immunizing the children:

He had done his own research into vaccines.
He traveled to a city with a measles outbreak, and upon his return was afraid to be around the kids for fear of exposing them.
He travels often for his work, including abroad.
He wanted the children to visit other countries, but the risks were too high without vaccines.
As he did not share the mother’s religious beliefs, he should not have to adhere to the mother’s religious restrictions during his parenting time.

Mother’s Arguments Against Vaccinations

The mother’s opposition to immunizations was based upon:

Vaccines conflicted with her religious beliefs.
There was a risk of side-effects on the children.
The mother had an autoimmune disease, and the children all had midline defects at birth, which she asserted contraindicated vaccinating them.

Expert Testimony re: Immunizations

The only witness other than both parents was a physician called by the father, who was qualified as an expert in pediatrics and vaccinations. Based upon the expert’s testimony, the trial court made the following factual findings:

• Because of the way diseases are transmitted and because Durango where the children live is a tourist destination, the Court finds failure to vaccinate endangers the health of the children even though they are home schooled.
• Vaccination provides benefits to the children, including preventing severe illness, permanent severe damage, and death.
• The risks of vaccination are extremely low.
Crouch.⁴

The expert specifically disagreed with the mother’s position on the children’s medical conditions contraindicating vaccines,

Trial Court Found Endangerment

The trial court was persuaded by the physician, and found that “failure to vaccinate endangers the health of the children.” Most of the time, that would be the end of the discussion – per C.R.S. 14-10-131(2)(c), a finding of endangerment is sufficient to allocate parental decision-making to one parent.

But because the mother’s “right to exercise religion freely” was at stake, the trial judge imposed an additional burden on the father to “prove substantial harm to the children” by remaining unvaccinated. And since the father failed to meet this strict scrutiny standard, his motion was denied. The court gave examples of “substantial harm” which would warrant father filing a “forthwith motion” in the future to modify decision-making:

A child is wounded, requiring a tetanus shot.
There was a community outbreak of a disease preventable by vaccination.
The children were going to travel by air or internationally.

Appeal – No Higher Burden of Proof Based Upon Religion

The father appealed, alleging several errors, and the Court of Appeals reversed on the grounds that the trial court misapplied the statutory endangerment standard by holding that the father needed to show “substantial harm” in addition to proving endangerment.

Legal Standard for Endangerment

“The retention of the allocation of decision-making responsibility would endanger the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”
C.R.S. 14-10-131(2)(c)

For a more detailed discussion of the standards to modify decision-making, see our Modification of Parenting Time & Custody article in the Colorado Family Law Guide.

Strict Scrutiny Standard Not Apply to Parents

When the government interferes with a person’s constitutional rights (including the free exercise of religion), the high strict scrutiny standard applies, thus requiring a showing of “substantial harm.” The trial court, relying upon McSoud,⁵ applied the strict scrutiny to the actions of the father, a non-governmental actor.

(In McSoud, the Colorado Court of Appeals found that the family law judge infringed a mother’s religious liberty by (1) preventing her from bringing the child to her church during her parenting time, and (2) requiring the mother to accompany the child to the father’s church during her parenting time.)

However, the appellate court found a key difference which makes that case inapplicable – in McSoud, the court itself (i.e. the government) was the actor infringing the parent’s religious liberty, whereas in Crouch the court would simply be “expanding one parent’s fundamental right at the expense of the other parent’s similar right.” ¶ 18

“A parent’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents… when allocating decision-making responsibility between the child’s parents… the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.”
Crouch.⁶

Best Practice – Address Vaccines in Parenting Plan

This won’t work for everyone, especially as the parents in Crouch did just that, and included in their parenting plan a ban on immunizations absent mutual agreement or court order. Many times, whether the parents are pro-vax or anti-vax, simply including expectations as to childhood shots in the parenting plan will resolve many arguments. But as the experience of Crouch shows, this won’t necessarily work if the parents hardwire in a no-vaccine position, and one parent later changes his mind.

At Graham.Law, when the parents have traditionally treated immunizations as routine medical care, we include in their parenting plan a clause which puts vaccines into the category of routine medical care that does not require a joint decision:

“Each parent has the right to obtain routine medical care for the children without obtaining approval from the other, including periodic checkups, routine dental checkups and treatment, treating minor injuries or illnesses, prescription medication, immunizations, eye exams and glasses, etc.”

However, if at the time of divorce the parents are already arguing about vaccines, they would obviously be unable to agree on this language. In that case, the parents would need to litigate shots, or at least medical decision-making, at the final orders hearing. Or, as the couple in Crouch did, at least try to agree on the appointment of a decision-maker or arbitrator to resolve any future disputes on immunizations without having to pay lawyers and file a motion to authorize or deny vaccinations.

For a more in-depth discussion of vaccines in divorce cases, and citations to decisions in Colorado and other states, see our child vaccines article in the Colorado Family Law Guide.

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