Journal Issue Date: Jan-Feb 2021
Journal Name: Vol. 57 No. 1
The effects of the global pandemic have reached into every area of our lives, and family law is no different. While we understand that a safe and effective vaccine will become available to the public soon, this opens a new door for disputes among couples who have differing views on vaccinating their children. What if parents who do not think that vaccines are either safe or appropriate refuse to give consent for their minor child or children to be vaccinated? What can the other parent do in a situation like this where there may be the most serious of consequences?
The ground has been trodden before and case law provides useful insight into this potential issue. Whether a court is asked to decide a child custody matter or the parents are able to agree to a parenting plan, various decision-making functions must be allocated to either one parent or the other, or they may be shared jointly. One such category of decision-making ability is nonemergency health care, which directs the choice surrounding vaccinations. At least two recent Tennessee appellate court cases have addressed this issue.
In King v. Daily, the court addressed a situation in which the parties were in the pendency of a divorce and the father was in favor of vaccinating the children while the mother opposed vaccinating. The mother’s objections were based on her firmly held religious beliefs that vaccinations are not acceptable. Despite the fact that the parties had entered an Agreed Order specifically permitting the immunization of the minor children, the mother quickly reversed her decision and the father motioned the court to determine the issue. The court ultimately granted the father, both temporary and later permanent, decision-making authority relating to the medical decisions for their children. Further, the court did so despite acknowledging that the mother had been the children’s primary caregiver throughout their lives and cited concerns over the mother’s fitness to make medical decisions on behalf of the children as a primary factor in making this decision.1 In this case, the court was likely concerned that the mother was “obsessed with finding some sort of medical problem for the children,” as well as causing “an outburst” while the children were being vaccinated. Also, the mother “accused the children’s pediatrician of being a pedophile during a routine examination,” as opposed to simply reaching the determination that immunization was the course of action based solely on the best interest of the child.2
The mother appealed the decision of the trial court and on appeal, the Court of Appeals underscored the general principle that “‘[t]he freedom of choice in matters of family life is ... a fundamental liberty interest,’ and the vast majority of parenting decisions should be left to the parents of the child.”3 The general freedom in parenting decisions that each parent or couple enjoys, however, “may require some limitations on the rights and interests of either or both parents” depending on the particular issues or circumstances of the particular case.4 The court also noted that, pursuant to Tennessee Code Annotated § 36-6-403(3), any court that is creating a parenting plan for minor children in a divorce or custody case must create the plan in a way that “minimize[s] the child’s exposure to harmful parental conflict.” In situations such as the one presented in King, where the parties are intractably committed to their individual positions, Tennessee Code Annotated § 36-6-404(5) allows the trial court to grant sole decision-making authority to a single parent in order to avoid persistent conflict that would be unhealthy for the minor children. This is true as long as the court conducts a proper review of the relevant factors in Tennessee Code Annotated § 36-6-106(a)(1)-(15) that assist the court in making the custody determinations for the minor children in all custody cases. The Court of Appeals ultimately affirmed the decision of the trial court relating to custody and noted that when making its determination as to custody, the trial court “relied on a number of factors, not just Mother’s opposition to vaccinations, in determining the best interests of the children.”5
While the King case dealt with a pending divorce and the trial court was reviewing the parties and their issues for an initial determination of a parenting plan, the Court of Appeals has also recently addressed this issue in the context of post-divorce litigation. In Pankratz v. Pankratz, the parties had already been divorced several years prior and, though the mother was designated the Primary Residential Parent, she and the father shared equal parenting time and joint decision-making ability for all four of the major areas typically addressed. Not long after the divorce was granted, they began to disagree in all four areas of decision-making, including medical, specifically on the issue of vaccinations. Among the various issues of disagreement brought before the court, the father believed that vaccinations were not good for their child while the mother was a registered nurse and believed the vaccinations were necessary. Ultimately, the trial court determined that, based on this persistent conflict over multiple issues, a material change in circumstances had occurred. The court therefore modified the parenting plan awarding the mother sole decision-making ability related to
nonemergency health care.6
The father appealed the issue and the Court of Appeals weighed in, determining that a material change in circumstances had occurred since the divorce and affirming the trial court’s modification of the parenting plan. It found that there was insufficient evidence to preponderate against the trial court’s findings.7 The Court of Appeals also affirmed the trial court’s finding that the proof the mother had presented was insufficient to warrant restricting the father from having the child attend his church during his parenting time.8
In both the King case and the Pankratz case, the trial and appellate courts determined that the parent seeking vaccination of the child or children should be awarded the authority to make medical decisions on behalf of the child. However, in both instances, there were additional issues and circumstances that influenced the courts’ determinations and, at least in the Pankratz case, it was only one of the areas of decision-making being addressed by the court.
What advice could a practitioner give a party in the COVID-19 world? It appears that the court will focus closely on the best interest of the child, as the statute requires, but it also appears as if it will respect the religious beliefs of either party despite the objections by one. It is not clear how a court would rule if presented with the sole issue of modifying the parenting plan based on a dispute about vaccinations because of the religious beliefs of one of the parents. As noted above, particularly in the King case, the individual facts and circumstances of each case play a large role in the ultimate outcome and may sway the court based on the totality of factors in Tennessee Code Annotated § 36-6-106(a). It is not certain that a court would shift decision-making for medical issues to the parent in favor of vaccination just because that court might feel that a vaccination was in the best interest of the child.
MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.
MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.
1. King v. Daily, 2018 WL 6266363, p. 1-2, http://www.tncourts.gov/courts/courtappeals/opinions/2018/11/30/brianna-danielle-king-v-aaron-jefferson-daily.
3. Id. at 4, citing Neely v. Neely, 737, S.W.2d 539, 543 (Tenn. Ct. App. 1987).
4. Neely, 737 S.W.2d at 542-543.
5. King, at 5.
6. Pankratz v. Pankratz, 2017 WL 4842400, p. 1-2, http://www.tncourts.gov/courts/courtappeals/opinions/2017/10/25/christen-nicole-panratz-v-dion-pankratz.
7. Id. at 5-6.
8. Id. at 6-7.
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