What Happens When Parents Disagree About Vaccinating their Children?
How do parents in Florida resolve disagreement about vaccinating their children, including disagreement over the COVID vaccination?
Courts are required to grant parents “shared parental responsibility” unless it would be detrimental to their child.[1] “Shared parental responsibility” means major decisions affecting the child are to be made after the parents confer and reach an agreement.[2]
When parents cannot reach an agreement on a major decision that is not specifically addressed in a court-ordered parenting plan, the dispute should be presented to the trial court for resolution.[3] In resolving the impasse, the lower tribunal must be guided by a consideration of the best interests of the child.[4]
An important threshold consideration is deciding what procedure to use to invoke the court’s jurisdiction to resolve a shared parenting deadlock in an existing parenting plan. Modification of a court-ordered parenting plan is initiated by supplemental petition.[5] Clarification of a court-ordered parenting plan is initiated by motion. However, the decision to vaccinate is not simply a clarification of the shared parenting directive in the parenting plan. Florida law provides that “a clarification seeks to make a judgment clearer and more precise, as opposed to a modification, which seeks to change the status quo.”[6] Therefore, a parent already subject to a court-ordered parenting plan must file a supplemental petition for modification to resolve an impasse over vaccination and immunization.
In McGrath v. Mountain, 784 So. 2d 607 (Fla. 5th DCA 2001), an original proceeding in paternity, the parents disagreed on the topic of vaccination and immunization. The father presented testimony as to the benefits of immunization. The mother, a chiropractor who used holistic medicine and homeopathy, opposed immunization on medical and religious grounds. The trial court granted the mother the right to make the decision on vaccination and immunization. The Fifth District determined both parties supplied the trial court with competent, substantial evidence, and therefore it could not substitute its judgment for the judgment of the trial court.
In Winters v. Brown, 51 So. 3d 656 (Fla. 4th DCA 2011), an original proceeding in paternity, the parents disagreed on the topic of vaccination and immunization. The father testified in favor of traditional medical care, including well baby exams, blood draws, urinalysis, and vaccinations. The mother, a chiropractor and proponent of holistic medicine, testified a tenet of her religious beliefs is that anything introduced into the body to prevent disease or treat illness is against the will of God, including vaccines. The Fourth District observed, “While courts have consistently overturned restrictions on exposing a child to a parent’s religious beliefs and practices, they make an exception where there is a clear, affirmative showing that these religious activities will be harmful to the child.”[7] The Fourth District found notable that the trial court considered and weighed Mother’s religious-based objection in its determination of the child’s best interests when it stated:
“The issue . . . is not one of simply exposing the minor child to the mother’s religious beliefs and practices, it involves an issue that could cause physical and serious harm to the minor child. When parents cannot agree, the court is called upon to break the impasse, and that decision must be made in the best interests of the minor child.”
The Fourth District determined the trial court’s decision was supported by competent, substantial evidence and affirmed the trial court.
In Palmquist v. Potter, FLWSUPP 2901PALM, Case No. 20-DR-386, Second Judicial Circuit in and for Gadsden County (March 6, 2021), an original proceeding in dissolution of marriage, the trial court was tasked with resolving a deadlock between the parents over vaccination and immunization. The Court did not believe either party presented sufficient evidence for a determination of the issue. The Court established a procedure for the parents to attempt to confer and agree on the topic, ordering:
[H]usband and wife will jointly confer with their minor child’s pediatrician, Carlos Hidalgo, M.D., and after listening to his professional opinions and advice regarding the advantages and disadvantages of immunizations, will use their best efforts to reach an agreement on which course to take. The consultation should include a discussion of any underlying health conditions or allergies that could make standard childhood immunizations contraindicated for the minor child. The consultation will occur no later than 30 days from the date of this order. If an agreement is reached using shared responsibility, the wife will file a notice of withdrawal of her motion. If not, the parties will contact the Court’s Judicial Assistant and set an expedited final hearing on the matter.
Note that the above family cases involve disagreement over vaccination and immunization between parents, as opposed to other forums in which parent decision-making may conflict with institutional policy, for example with private religious school[8] or cases involving DCF.[9]
When parents ask the Court to resolve a good faith impasse over vaccination and immunization, it is error for the court to grant the prevailing parent ultimate decision-making authority over all medical care, absent evidence of detriment broader than that discrete issue.[10]
Conclusion
When parents disagree on whether to get their children vaccinated or immunized, they must make a good faith effort to discuss and attempt to reach an agreement. If parents are unable to reach an agreement, then either may file a supplemental petition to have the court determine which parent shall be authorized to make the decision on vaccination. The parents need to provide the court with sufficient evidence to make a decision, such as testimony by a health care professional. A trial court’s determination of the issue is likely to be upheld if based on competent, substantial evidence.
Michael DeVoe is a divorce attorney in Orlando practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.
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[1] See F.S. 61.13(2)(B)(2).
[2] F.S. 61.046(17) and Gerenscer v. Mills, 4 So. 3d 22 (Fla. 5th DCA 2009).
[3] Lane v. Lane, 254 So. 3d 570, 573 (Fla. 3d DCA 2018) (citing Dickson v. Dickson, 169 So. 3d 287, 289 (Fla. 5th DCA 2015)).
[4] Id. (citing Dickson, 169 So. 3d at 290; Gerencser, 4 So. 3d at 23-24; Sotnick v. Sotnick, 650 So. 2d 157, 159-60 (Fla. 3d DCA 1995).
[5] See e.g. Roque v. Paskow, 812 So. 2d 500 (Fla. 4th DCA 2002); Fussell v. Fussell, 778 So. 2d 517 (Fla. 1st DCA 2001); and Gerber v. Gerber, 153 So. 3d 304 (Fla. 2d DCA 2014). See also Fla.Fam.L.R.P. Rule 12.110(h).
[6] See Bustamante v. O’Brien, 286 So. 3d 352, 355 (Fla. 1st DCA 2019) (citing Roque v. Paskow, 812 So. 2d 500, 503 (Fla. 4th DCA 2002) (citing Fussell v. Fussell, 778 So. 2d 517, 518 (Fla. 1st DCA 2001) and Dickinson v. Dickinson, 746 So. 2d 1253, 1254 (Fla. 5th DCA 1999)).
[7] See Winters v. Brown, 51 So. 3d 656, 657 (Fla. 4th DCA 2011) Mesa v. Mesa, 652 So. 2d 456, 457 (Fla. 4th DCA 1995) (citation omitted).
[8] Flynn v. Estevez, 221 So.3d 1241 (Fla. 1st DCA 2017).
[9] N.C. v. Dep’t of Ch. and Fam., 290 So. 3d 508 (Fla. 2d DCA 2020). Under certain circumstances, DCF or a designated caregiver can arrange for “ordinary immunizations,” provided certain conditions precedent are satisfied.
[10] See e.g. Gerenscer v. Mills, 4 So. 3d 22 (Fla. 5th DCA 2009). Cf. Winters, supra.
