Can someone go to court to prevent their un-vaccinated ex from taking the kids, even though they share 50-50 custody?

Can he/she go to court? Yes. You can go to court for anything, no matter how serious or how silly your “cause” may be. Whether the court will take your request seriously and grant it is a separate question. 

Would the fact that a parent is not vaccinated against any particular disease (COVID-19 particularly, but certainly not exclusively) constitute good cause for ordering that parent restrained from exercising custody or visitation (also known as parent-time) of his/her own children? 

A few factors come to mind as I analyze this question. First, Is the unvaccinated parent violating the law by not being vaccinated? If the answer to that question is no, does that end the analysis? It could, but it probably doesn’t. Why? Just because one is not legally required to be vaccinated may not mean that the parent is acting responsibly by not being vaccinated. Then the question would be how responsible or irresponsible Is apparent acting if he/she is not vaccinated. For example, if a parent didn’t get a flu shot, and if the parent’s child or children are not abnormally susceptible to serious risk of permanent injury or death due to the flu, I would guess that most courts would not consider a parent who doesn’t get a flu vaccine to be unfit to exercise custody and parent time of his/her children.  

As this analysis applies to the COVID-19 virus, I don’t claim to be a healthcare professional, but it’s my understanding that children in a normal state of health aren’t likely to get deathly or even seriously ill if they contract various diseases, such as chicken pox or the COVID-19 virus. Because contracting such illnesses as a child does not afflict the child with any long-term irreparable harm, it would be hard to argue that a parent who fails or refuses to get a vaccine against such illness or illnesses constitutes an unreasonable danger to the child or even a serious risk of harm to the child.  

And think of it this way: dogs can seriously or even fatally harm children. Does this mean that a parent who has a dog as a pet has recklessly or negligently placed his/her children in harm’s way? What about a parent who likes to go horseback riding with the children? If one falls off a horse, he or she could break an arm or leg, or even suffer a serious spinal cord injury and be paralyzed for life. But does the level of risk dictate that the child never have the opportunity to ride a horse or learn to ride a horse? What about a parent who smokes, but does not do so in an enclosed space with the children present, so that any secondhand smoke concerns are minimal to nonexistent?  

Some may say there is a substantive difference between having a dog as a pet or learning to ride a horse and running the unnecessary risk of contracting COVID-19. But getting vaccinated is not risk-free itself. We know of some people who get vaccinations against different diseases who have a serious or even fatal reaction to the vaccines. Many questions swirl around whether the COVID-19 vaccine is safe. Is a parent who fears that he or she may suffer chronic or fatal harm by getting vaccinated exercising poor judgment such that he/she is considered an unfit a parent unfit to exercise custody or parent time? 

So the question really comes down to whether the government (in this case the judicial branch) can, by invoking the “best interest of the child” standard, infringe upon or deny parental rights if a parent exercises his/her freedom of choice not to be vaccinated. While I am sure that there are some judges who believe they can, I believe the majority of judges in this country (United States of America) believe that such would constitute an abuse of their discretion. 

Utah Family Law, LC | | 801-466-9277  

Tags: , , , , , , ,
Click to listen highlighted text!