Divorced couples might have different opinions and argue on many issues, including finances, lifestyle and the children. But once a marital settlement agreement is in place, (when the couple is officially divorced) they have an obligation to adhere to the terms set forth in the agreement. There is a new potential disagreement that most likely is not in any divorced couples’ marital settlement: the COVID vaccine, more specifically, whether or not the kids should get it. What happens when divorced couples disagree about the COVID vaccine?
What happens if one parent decides they want the children to get the COVID vaccine and the other is against it? Should each person call their attorney? What are the laws regarding this brand new issue? And is this a problem that can be worked out in mediation or do they have to go back to court?
For answers to these questions, I reached out to Chicago based Divorce Mediator, Ellen Feldman and Chicago Divorce Attorney, Tiffany Hughes.
“We have been approached by couples to mediate this issue but haven’t actually met with any clients yet,” said Feldman, a former litigation attorney turned divorce mediator in 2007. “It is no different from any issue we mediate, including couples who do not want to give their clients flu shots or any other vaccine.”
Feldman said the first thing she would do if a couple sought mediation to come to an agreement on the issue is to figure out the nature of the disagreement.
“We would try to get behind their position to see whether they are just afraid of the vaccine, need more information or do not believe in any vaccine,” Feldman said. “Once we understand why they are taking a position to vaccinate or not to vaccinate, we can help them come to an agreement.”
Feldman said that she and her business partner, Brian James prefer to keep the couple in the same room so that they are hearing everything the other person is saying, but that in some cases, it is necessary to speak to each parent privately to hear why they are taking a certain position.
“We ask lots of questions, like ‘What are your concerns? Do you know anyone who had a bad reaction from vaccinating their child? Would it help to wait until other children you know have been vaccinated?’” said Feldman.
If a couple cannot come to an agreement in mediation, they must go to court. Also, in the state of Illinois, when it comes to parenting issues, (which this is) they cannot pursue litigation until they have attempted to mediate.
“Parents do not need to agree in mediation, but they have to attempt “in good faith” to do so,” Feldman said.
Chicago divorce attorney, Tiffany Hughes said when divorced couples disagree about the COVID Vaccine, if they go to court, a few factors would come into play:
1. In some couples’ divorce decree, one parent has sole medical decision-making power for the kids. This means that if the parent who has that decision making power decides to vaccinate the minor child for COVID, the only way the other parent can object is by going to Court and asking the Court to intervene.
2. The Courts will always put the best interests of the child in the forefront of any situation that interferes with parenting decisions. Given the scale and the unknown long-term effects of the COVID-19 virus, it likely that the Court would err on the side of caution and order that the child receive the vaccine, so long as they are of an age that is considered safe to receive the vaccine and do not have any health issues that would prevent them from receiving the vaccine.
3. Given that vaccines have just started to become widely available and the fact that the vaccine has not yet been approved for younger children under the age of 12, there is little to no case law on this issue. This means that the lower Courts do not have any precedent from the higher Courts to follow since the circumstances behind the vaccine is a recent global pandemic.
Until the lower Court cases are appealed to the higher Courts, this is when case law will begin to emerge. Until then, whether or not the Court will order children to be vaccinated will continue to be determined on a case-by-case basis.
In closing, when divorced couples disagree about the COVID vaccine, both are in a really tough position. It is scary and emotional, and could cause a lot of conflict in your relationship. As recommended above by Feldman and Hughes, it’s best to start with a call to your attorney and/or to a mediator.
Just try to remember that your ex, whatever position he or she takes on the COVID vaccine, has your kids’ best interest at heart and loves them as much as you do. That might help soothe some stress and anger that this issue might bring to your relationship.
Ellen Feldman has been working as a mediator since 2007. A graduate of Smith College and Indiana University School of Law, Feldman previously worked as an attorney for 15 years practicing commercial litigation. Since 2006, Ellen has been a volunteer for The Lilac Tree, an Evanston based nonprofit organization assisting women through the process of divorce. Additionally, Feldman completed Family and Divorce Mediation Training through DePaul University Center for Conflict Resolution and Advanced Family Mediation. She is a court-approved mediator for the 19th Judicial Circuit Family Court of Lake County. Learn more by visiting the C.E.L. & Associates website.
Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Awarded as a Top 100 in Lawyers Magazine in 2018 and 2019, Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.
Like this article? Check out, “My Q & A with Tiffany Hughes,” and “3 of the Biggest Issues that Arise in Mediation”
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