In the aftermath of the COVID-19 pandemic, the question of if or when to vaccinate generally has exploded in the public discourse. While COVID-19 has not been shown to cause high rates of hospitalization and death in children, children who were unvaccinated for COVID-19 faced significant restrictions in many jurisdictions- particularly where they could go and what they could do. In addition, what was a conversation on COVID-19 vaccinations in children has turned into one on childhood vaccination in general, which begs the question: how do Child Protective Services (CPS) and the family and juvenile courts view childhood vaccination (or lack thereof)?
Some childhood vaccinations, such as Measles/Mumps/Rubella (MMR), Diphtheria/Tetanus/Pertussis (DTaP), Vaicella and Hepatitis B, are mandated for children to attend school and certain extracurricular activities. While limited medical and religious exemptions are available, they are often very difficult to get. Lack of vaccination alone is not enough for CPS to substantiate a case, but if their medical consultant says your child(ren) should have a particular vaccination for medical reasons and they don’t, CPS may substantiate a case against you for medical neglect. In their eyes, a licensed professional has reviewed any medical concerns and vaccination status and identified a serious safety concern (you will likely never know if CPS discusses your case with their medical consultant (unless your case proceeds to court and they are called to testify), but it’s safe to assume they will be. How much vaccinations are pushed is going to depend on the politics of the state in which you reside. If you live in a state where the government had more extensive COVID-19 restrictions on children, CPS is more likely to be aggressive on lack of vaccination. If, however, you live in a state where the restrictions were more limited after the vaccine became available, CPS is less likely to be aggressive on vaccination recommendations, but also less likely to substantiate a case on that issue alone.
Divorce and custody disputes are another matter entirely. Here, you have two parents or guardians who disagree on vaccination and this is where the subjectivity of the family and juvenile court systems get difficult. Being in a state with more favorable laws surrounding your vaccination preferences usually provides an advantage, but not always. Often, even in states that are less pro-vaccination, more urban areas and their immediate suburban surrounding areas tend to have judicial systems that lean pro-vaccination. This is often reflected in rulings in the family and juvenile court due to the subjectivity of the evaluation of what may or may not be in the best interests of the child(ren). Retaining a good, proactive, attorney you trust is always a good idea, but due to the subjectivity, charisma is just as important. If you are more likeable generally speaking, others (yes, including judges) are more likely to agree with you. While this article doesn’t get into case specifics, a legal professional you trust or your local court clerk can provide legal advice on these matters.
A decision not to vaccinate without a medical or religious exemption can come with additional problems. If your child is of school age and unvaccinated for a mandated vaccination without a formal religious or medical exemption, you will likely have to home school. If your child’s education is not meeting the minimum requirements or paperwork is not submitted as required for parents who decide to home school, you may also end up with an educational neglect allegation if you live in one of the 23 states or Washington, D.C. where educational neglect is investigated by CPS- or charges of truancy in other jurisdictions, which could result in a dependency case, anyway.
If your child(ren) get seriously ill from an illness he or she could’ve otherwise been vaccinated against and there is permanent damage, medical professionals as mandated reporters could make a report to Child Protective Services. It’s unlikely that such a case would be substantiated, but it could be, as well. Serious long-term illness also requires supervision and attentive care, which may take a caregiver away from work (if they work) and affect their ability to pay bills such as rent, mortgage or food, which can invite potential allegations of inadequate food, clothing and/or shelter. If they are continuing to work, it may affect their ability to supervise which could also invite allegations of lack of supervision.
One may assume that if CPS or the state isn’t provided with vaccination or medical records, that they won’t know the vaccination status of your child(ren)? Because the governments in all 50 states maintain vaccination records of their residents (reported as required by the medical professionals licensed to administer them)- most often in what is referred to as Immunization Information Systems (IIS), your local CPS agency and the courts will likely be able to access your child(ren)’s vaccination records whether or not you give consent. This is done by creating a memorandum of understanding or other interdepartmental policy and is not technically in violation of HIPAA (that doesn’t mean it’s not a moral violation of privacy- it is).
If you have a religious or medical vaccination exemption, make sure you have copies of all documentation confirming this. If you have decided to delay vaccinating your child(ren) based on the recommendation of your child(ren)’s pediatrician or other pediatric medical professional, make sure you have a letter from them on their professional letterhead documenting the recommendation and why it is being made. If you home school, make sure you are providing age-appropriate supervision throughout the day and submit all required documentation for compliance completely and on time. Additionally, you may choose to live in a state that is more friendly and less hostile to those who decide not to vaccinate. If you live in a state less friendly and more hostile toward those who choose not to vaccinate, the risk of CPS substantiating a case or a court ruling against you over vaccination status over a mandated vaccine are statistically higher than in states less hostile toward it.
At Heartwork Defense, we tend to err on the side of the parent’s discretion. No child comes with an instruction manual and it is always a learning experience. There’s no such thing as a perfect parent. Your decision to vaccinate your children or not for non-mandated childhood vaccinations (or even the delay of vaccination) should not sway the outcome of a CPS investigation either way. In a custody dispute, the decision ultimately rests with the judge and your ability to sway him or her- with the right strategists and legal team on your side, it is possible. If you decide to delay or not vaccinate for any or all mandated childhood vaccinations, it is another matter. If you make carefully informed choices around your decision not to vaccinate, your vaccination choices may put you at higher risk of a CPS investigation- but not higher risk of a substantiated case.