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Why Mediation Is Better Than Court to Resolve Disputes about Kids’ Vaccination

States will soon be opening vaccination up to minors, and this may cause disputes between parents who have differing views on vaccines. In one poll, 43% of parents said they would allow their 12-15 year old children to get the vaccine while 29% said they wouldn’t, and 21% weren’t sure. Another poll showed that only 29% of parents would allow their children under 18 to get the vaccine.

In California, parents cannot use the reason of “personal belief” to exempt their child from vaccinations for the major childhood diseases – pertussis, diphtheria etc.—and this also affects whether the child is able to attend school, where these vaccines are mandatory. However this list does not yet include COVID-19 vaccines. These vaccines are not yet approved and are still being tested on children and young people. It’s possible that vaccines will be mandatory at school, but only when the vaccine can roll out safely to the younger population. In California, underage children cannot consent to getting the COVID-19 vaccine, even if they themselves would prefer to so.

So where does that leave divorced parents? Divorced or divorcing parents in cities like San Diego could be facing into costly litigation if they can’t agree on vaccination. The parent with sole legal custody is allowed to make medical decisions on the child’s behalf, but a parent who disagrees with an anti-vax or pro vaccination stance can petition for custody of the child, based on the child’s best interests. The court will have to determine the best interests of the child and likely the process will be time consuming and difficult for parents and children. Parents who have joint legal custody are in a position where neither can make the decision, and again, it will require one parent to fight the other for sole legal custody to gain the authority to make a decision. Thus the decision on whether to vaccinate a child could disrupt otherwise peaceful joint custody agreements. It could also bring conflict to divorces that might otherwise be amicable.

Before embarking on the costly and time consuming process of fighting your co-parent in court, parents should consider mediating their divorce or mediating already existing parenting arrangements to resolve this issue. In mediation, everyone is heard and everyone is informed. Information is presented in court to make a case for one parent’s point of view, whereas information is shared in mediation to empower parents to make a co-operative decision about what’s best for their child’s health and wellbeing.

At Divorce Options San Diego we have legal, financial and psychoanalytical expertise. We can help you confront the emotional issues in your divorce to discover what underlies your conflict and help you to identify your true needs and make rational decisions. However, we are also well versed in California law and can prepare and manage your divorce documentation. We ensure that your agreement is in compliance with California child custody guidelines.

Parents getting a divorce in California are entering a transition period as the pandemic begins to resolve. This may be a tricky time to make decisions about what is best for your kids. We help you arrive at fully informed and mutually agreed upon decisions that will protect your children’s’ health and best interests.

Our Services and How We Can Help

At Divorce Options San Diego, we are highly qualified California divorce mediators and certified financial planners with psychoanalytical expertise. Our mediators are caring, educated professionals who build divorce around conflict resolution, closure and practical solutions for your future life. At Divorce Options San Diego we reframe divorce as an opportunity to generate creative, optimized solutions for your future and your kids’ future. We never litigate. We do not do adversarial work and we do not ever represent one spouse against another. We empower divorcing spouses to own their divorce and craft sustainable, effective mutual agreements that will last long after the divorce is finalized. We are a one-stop shop providing a bundle of essential divorce services, from paperwork, court documents and financial analysis, through divorce transition coaching, life coaching and interior design. We use ZOOM, skype video and web conferencing, texting and other forms of electronic communication for convenience, multistage situations, international situations and the current coronavirus crisis. San Diego Divorce Options puts a high premium on a peaceful, child-centered divorce. We use developmental psychology, attachment theory, psychology of grieving and family systems psychology to help you and your children through a difficult emotional transition. We help divorcing parents draft multi-phase parenting plans considering the child’s developmental needs. These parenting plans are lightweight, flexible, but thorough and in compliance with California law. We help co-parents build parenting plans that will withstand the challenges of parenting, reviewing all the health best practices during the current Covid-19 crisis, and always prioritizing the best interests of the child. The mediators at Divorce Options San Diego are all certified financial planners who apply thorough financial analysis to your divorce to achieve an optimized result that will cover all aspects of your financial situation, including investments, property,  and all other assets or debts. At Divorce Options San Diego we emphasize an efficient, caring process that leaves out no detail relevant to your emotional, financial or legal situation. This leaves you free to get on with your life and care for your kids and yourself both during and after your divorce. We have offices in Solana Beach, CA. Currently, our safe, socially distanced mediations can be facilitated by Telephone, Zoom, Facetime and other videoconferencing tools. We are available 7 days a week and at urgent notice. Please contact us to see how we can help

Divorce attorneys are bracing for exes battling over giving kids the COVID-19 vaccine

‘There will certainly be some controversy about this,’ one divorce attorney said after the FDA cleared the way for using the Pfizer/BioNTech vaccine on 12 to 15-year-olds ‘Courts don’t want to raise children. They don’t want to make this decision for parents.’ But they can and they will.

One parent insists their teenager get vaccinated against COVID-19, but their ex is staunchly against it. What happens next?

Following the Food and Drug Administration’s Monday decision that 12- to 15-year-old children can receive the Pfizer PFE, +0.46% -BioNTech BNTX, -1.86% vaccine, divorce lawyers told MarketWatch they’re bracing for this deeply personal, complicated — and potentially pricey — parental disputes.

There is some precedent for courts intervening in such matters. Pennsylvania appellate judges in 2015 upheld the award of sole legal custody to a father who was in favor of vaccines, while the mother opposed them.

The court quoted parts of the lower decision that called the mother’s anti-vaccine stance “unreasonable and dangerous.”

“There are certainly people who are going to fight over their children, given the opportunity, and make any kind of power play that they can,” said Kyla Lines, managing member of Richardson Bloom & Lines.

The Atlanta-based attorney doesn’t have one of these cases yet, but she’s already represented parents in litigation over virtual or in-person schooling during the pandemic.

‘There are certainly people who are going to fight over their children, given the opportunity.’

— Kyla Lines, managing member of Richardson Bloom & Lines

And she knows the dynamic in some family splits, notwithstanding the pandemic’s capacity to stoke fierce feelings.

Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Long Island, New York, is also anticipating vaccination-related disputes. He already has to hash out COVID-19 parenting ground rules in divorce agreements when parents differ on activities like indoor dining.

Elizabeth Lindsey, shareholder at Davis, Matthews & Quigley, also based in Atlanta, says vaccination fights are brewing.

She hasn’t yet handled a dispute specific to the COVID-19 vaccine for teenagers. But Lindsey, without going into specifics due to client confidentiality, is handling a pending divorce where one side is generally against vaccines. “It’s about your belief system, your trust in the science,” she said.

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‘If you have a fundamental lack of trust, there’s no way to necessarily get somebody to change their views.’

— Elizabeth Lindsey, shareholder at Davis, Matthews & Quigley

“If you don’t trust the science, if you have a fundamental lack of trust, there’s no way to necessarily get somebody to change their views,” she added.

That’s where courts will have to get involved and make the call based on factors including the child’s best interest and which parent, if any, deserves final say on health matters.

These aren’t decisions judges take lightly, Lindsey said. “Courts don’t want to raise children. They don’t want to make this decision for parents.”

But they can, and they will.

Getting a decision requires motions, hearings and litigation. That all costs money. Trying to reverse rulings and establish appellate-level law costs even more money.

“That’s the way of family law,” Lines said. “The more you fight with each other over your child, the less resources are going to be available for your children.”

‘The more you fight with each other over your child, the less resources are going to be available for your children.’

— Kyla Lines, managing member of Richardson Bloom & Lines

Some 60% of America’s adult population had received at least one COVID-19 dose and 47.6% were fully vaccinated as of Tuesday, according to the U.S. Centers for Disease Control and Prevention.

Hardening vaccine hesitancy is an issue, pollsters note. And lines are forming when it comes to teen vaccination, some polling suggests.

Approximately 43% of parents said they’d let their 12- to 15-year-old child get the shots, according to an approximate 9,000-person poll from Outbreaks Near Me, an outbreak mapping effort from epidemiologists and software developers at Boston Children’s Hospital and the Harvard Medical School.

But 29% said they wouldn’t let their child receive the vaccine, while another 27% weren’t sure what they’d do.

Other surveys suggest parents are not so sure. A separate Kaiser Family Foundation poll concluded that 29% of parents with kids under age 18 would have their child vaccinated as soon as it becomes available for their age group, and 32% had a wait-and-see approach.

Meanwhile, 19% said they would not let their child be vaccinated and 15% said they’d do it only if it was a school requirement, the KFF poll found.

Each state handles these matters differently

The starting point in the coming debate is the matter of custody. There’s physical custody, or the amount of “parenting time” someone has with their child, Lindsey points out. Then there’s legal custody, or decision-making authority.

Of course, in extreme situations like the aftermath of domestic violence or neglect, one parent can have complete physical and legal custody and the other has restricted access, Lindsey said.

But what’s more likely is an arrangement where each parent has some portion of physical custody and decision making power in a child’s life. These matters can be hashed out in divorce agreements or left for courts to decide.

In Texas, the ‘rights and duties of a parent’ include topics like the right to make moral and religious-based decisions.

Each state slices up the mass of parenting decisions differently, explained Lindsey, the current president of American Academy of Matrimonial Lawyers.

In Texas, the “rights and duties of a parent” include topics like the right to make moral and religious-based decisions, the duty for physical and medical support, and even topics such as consent on a child’s military enlistment, said Jonathan Bates of Kinser & Bates in Dallas.

In New York, the case law has developed different decision making “zones,” according Rosenberg.

Judges are the tiebreaker in some states and, in other places, that parent gets the last word on that particular topic, Lindsey said. The general idea is for parents to compromise and find common ground before turning to litigation, she noted.

But even if a parent, on paper, gets to pull rank on medical decisions, this may not stop litigation. It’s possible that divorced parents in vaccine fights will try to convince judges to modify already-set decision making powers when it comes to health matters and vaccines in specific, Lindsey said.

In Texas state law, ‘there has been longstanding debate whether vaccines are an invasive medical procedure.’

— Jonathan Bates of Kinser & Bates in Dallas

At least in Georgia, it’s not an easy task persuading judges to revise divorce agreements, Lines said. But decisions to vaccinate or not to vaccinate can seep into other parts of life, she added.

What if the child’s school requires COVID-19 vaccinations for in-person fall attendance? Lines foresees arguments like a parent saying their ex’s refusal to vaccinate is interfering with the child’s educational interests.

“There’s certainly all kinds of ways that this decision is going to impact this kid’s life going forward,” she said.

In Texas, authority over “invasive” medical procedures are one of the parental powers that can get parceled out, Bates said. However, he added, “there has been longstanding debate whether vaccines are an invasive medical procedure.”

The determination “varies from court to court,” he said. Trial court, specifically. Bates isn’t aware of appellate decisions on the matter. The COVID-19 vaccine might finally give Texas appellate courts the chance to weigh in, he said.

“Going up on appeal takes a significant amount of time,” he said, “and money.”

Do kids have a say?

Parents have their points of view, but so might kids — especially those in the 12- to 15-year-old demographic.

Most states give their judges the right to appoint a lawyer on behalf of the child in custody matters, Lindsey said.

How much weight a judge applies to a child’s perspective depends on the case’s facts and circumstances, Lindsey said.

Most states give their judges the right to appoint a lawyer on behalf of the child in custody matters.

Judges may be more inclined to give serious consideration to a teenager’s point of view, compared a younger child, she said.

“I don’t know how easy it would be to hold down a 15-year-old who didn’t want to get a shot,” she said.

For COVID-19 vaccination disputes involving children under age 12, “it’s going to be purely a parental decision,” she said.

While that sounds relatively more clean-cut, it’s not, Lindsey said. “This issue isn’t going to go away. It’s going to get more complicated the younger you get,” she said.

For one thing, a younger child without an opinion on the vaccine leaves judges with one less source to inform their opinion. “When you can’t split a baby, who’s the best to take care of the baby?” Lindsey said.

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