Cash & the Regulation: Divorce results in court docket combat over youngsters’ vaccinations | Enterprise

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As you no doubt know, thanks to COVID-19, vaccination has been front page news for several weeks and people are engaging in all manner of creative strategies intended to help them move up in line.

But what happens when a divorced mother and father disagree on whether their children should receive vaccinations? This was the situation facing a La Plata County District Court judge in a divorce proceeding that began in 2017, before the COVID-19 pandemic arrived on the scene, and ended up at the Colorado Court of Appeals. Father wanted the children to receive normal childhood vaccinations including, among others, a vaccination against measles. Mother did not want the children to be vaccinated against anything, based on her religious beliefs and a concern (with limited medical authority) that vaccinations could injure the children.

The mother and father had addressed the issue of vaccinations for their children in their divorce decree, which generally incorporated joint medical decision-making and specifically said that, “absent joint mutual agreement or court order, the children will not be vaccinated.” The father later changed his mind about a joint mutual agreement and asked the court to give him sole medical decision-making authority. Leading up to his change of mind had been a trip to Seattle, where a serious measles outbreak was underway; he came home from that trip worried that he might now infect his children. He also wanted to be able to travel to foreign countries with his children and was concerned that, in the absence of vaccinations, this would not be safe.

The rule in divorce proceedings, and applicable here, is that a judge won’t modify a decision-making provision in a divorce decree unless such a modification is necessary to preserve a child’s best interests. The statute in question goes on to say modification is permitted if the current allocation of decision-making responsibility would endanger the child’s health, and the harm likely to be caused by a change is outweighed by the advantage to be realized by a change.

The judge in this case started marching down this path and found that the absence of vaccinations could in fact endanger the health of the children. But, she then tripped over the mother’s argument concerning her religious beliefs; imposed on the father a heightened burden of proof (which the judge seemingly invented for this occasion) on risk to the children of not being vaccinated; concluded the father had not met this burden of proof; and denied his motion to give him sole decision-making authority.

The father promptly headed to the Colorado Court of Appeals. That court, in a January decision, concluded the trial court judge had run amok (in lawyer talk, “committed error”) when she saddled the father with a heightened burden of proof about the risk of no vaccinations. The Court of Appeals sent the case back to the trial court to reconsider the matter — meaning, in effect, to grant the father’s motion to give him sole decision-making authority and allow the children to be vaccinated.

Although the Court of Appeals danced around this issue, implicit in its decision seems to be that, at least in a circumstance of divorce, one parent’s religious beliefs, in the absence of concurrence by the other parent, doesn’t create a right to endanger the health of the children.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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