It is no secret the Covid-19 pandemic has flipped our world upside down in the last two and a half years, affecting nearly every aspect of our lives in a way we never dreamed.

The pandemic has significantly impacted the divorce process, parenting, and marriages in general. Although most of the Covid-19 restrictions have been lifted, family law attorneys continue to navigate unprecedented issues in nearly every matter.

Children’s issues have always been the most challenging for parents and their attorneys, especially for high-conflict couples.

Parents often debate which activities their children can and cannot participate in or whether their children can travel outside of the country.

Whether the parties’ children will receive the Covid-19 vaccine is now the most challenging issue for divorced or divorcing high-conflict couples.

In a Parenting Allocation Judgment, parents must decide on major issues such as the allocation of parenting time and decision-making in education, health, religion, and extracurricular activities.

Due to conflicting studies and media reports, many are hesitant to receive the Covid-19 vaccine.

Although the CDC has confirmed the vaccine is safe and fatal side effects are extremely rare, many individuals still cite concerns about long-term side effects, especially for young children receiving the vaccine.

The dispute over receiving the Covid-19 vaccine has created a large divide in society, bringing about strong emotions. When divorcing parents have conflicting views on their children receiving the vaccine, how does a court resolve this issue?

Before Entry of Judgment of Dissolution of Marriage

Section 602.5 of the Illinois Marriage and Dissolution of Marriage Act allows the court to allocate to one or both parents the decision-making responsibility for each significant issue affecting the child. In making this determination, the court will look to the factors set forth in Section 602.5 which include: the wishes of the child; the mental and physical health of all individuals involved; the level of conflict between the parties that may affect their ability to share decision-making; the level of each parent’s participation in past significant decision-making with respect to the child; any prior agreement or course of conduct between the parents relating to decision-making with respect to the child; and the wishes of the parents and the child’s needs.

It is a tricky situation when dealing with parties with opposing views on whether their child should receive the Covid-19 vaccine. It is crucial for parents to separate personal opinions and beliefs and focus on what is in the best interests of their child. Some children may not be able to attend school or participate in certain extra-curricular activities if they are not vaccinated. This directly impacts the children.

On the other hand, individuals may be opposed to vaccinating their child if the child has an underlying health issue. While a bright line rule for tackling such a highly contested issue does not yet exist, we have seen courts look to the 602.5 factors to determine what is in the child’s best interest. It is always helpful to include a provision in the Parenting Allocation Judgment stating the parties shall follow the children’s primary care physician’s advice.

Post-Judgment Matters: What May the Court Do?

For divorced parties who have already entered into a Parenting Allocation Judgment, it may provide for joint decision making. If the parties are unable to jointly decide on vaccinating their child, the court will ultimately have to decide.

While our system tries to remain as hands-off as possible when it comes to decisions related to a child receiving the Covid-19 vaccine, the court has the ability to modify the parties’ Allocation Judgment.

Section 610.5 of the Illinois Marriage and Dissolution of Marriage Act provides if an unforeseen substantial change in circumstances has occurred, the Allocation Judgment may be modified, if necessary, to serve the best interests of the child. The Covid-19 pandemic and emergence of the Covid-19 vaccine is undoubtedly an unforeseen substantial change in circumstances.

For parents who entered into an Allocation Judgment prior to the pandemic, the court will have the ability to balance the factors in Section 602.5 to determine if it is in the best interests of the child to modify the Allocation Judgment and allocate medical decision-making powers to only one parent who will decide whether the child will or will not receive the Covid-19 vaccine.

As always, parents will ideally work together to make a decision in their child’s best interests. When faced with the inability to agree, the Judge will ultimately decide the outcome. This will force the couple to spend tens of thousands of dollars to litigate this issue. Stating the obvious: that is never ideal as no one knows a child better than their parents and a unified front will ease tension and allow for a greater sense of unity for the long term.

Beth F. McCormack, Equity Partner
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