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Parental Disputes Over the COVID-19 Vaccine in IL

By Nottage and Ward on October 16, 2021

With the approval of the Pfizer vaccine, COVID-19 vaccines are now available for children ages five and older, in addition to 12 to 17-year-olds. Disputes among divorced parents and co-parents are on the rise as to whether to have children vaccinated. Some parents are strongly opposed to having their children vaccinated, while others are all for it. Many parents feel there are too many unknowns about the COVID-19 vaccines and want to wait until there is more data about their safety and effectiveness to have their children vaccinated. Other parents feel not having the vaccine puts their children at risk of contracting the virus.

Who Gets to Decide Whether a Child Is Vaccinated?

The right to make healthcare decisions will depend on who has custody of the child. In Illinois, custody is known as allocation of parental responsibilities. Child allocation is divided into two separate parts:

• Physical allocation: This describes which parent the child lives with and sets the schedule for parenting time. The parent with whom the child lives is known as the residential parent. Typically, both parents have time with the child.
• Legal allocation: This refers to who has the right to make important decisions for the child in areas such as education, religion, extracurricular activities, and healthcare. Sole allocation gives one parent the right to make these types of decisions for the child. Joint allocation requires that these decisions be made jointly by both parents.

If one parent has sole allocation, that parent has the right to decide whether the child should receive a COVID-19 vaccine. In most cases in Illinois, parents have joint legal allocation and must reach a decision together on whether a child should be vaccinated.

What Happens When Parents with Joint Allocation Disagree?

If you and your ex or co-parent have joint allocation and opposing views on COVID-19 vaccination for your child, your first step may be mediation to try to resolve the matter out of court. If you are unable to reach an agreement in mediation or otherwise, the matter will have to be decided by a family law judge. As with any family law matter that goes to court, it is in your best interests to have an experienced family law attorney represent you.

How Does a Parenting Plan Factor In?

A parenting plan is a legal document that dictates how decisions for the child will be made and who will make them. For parents with joint allocation who divide parenting responsibilities, the parenting plan helps keep them on the same page. This document should cover all important matters that concern the child, including medical decisions and vaccinations. It is best if parents can agree on a parenting plan and file it with the court jointly. If they cannot agree, each parent may file a separate parenting plan, and the court will ultimately decide. If treatment of vaccinations has been included in the parenting plan, it could affect the outcome of a dispute regarding COVID-19 vaccinations.

How May a Judge Evaluate Data Presented to the Court Concerning Vaccines?

As always in family law matters, the court will evaluate data in the best interests of the child. The judge may look first to see which parent has the right to make medical decisions. If both parents have joint allocation, the court may lean toward scientific data in making its decision. If a parent has a specific medical reason for not having a child vaccinated, the judge may want to see the child’s medical records or speak with the child’s doctor.

If the matter of whether your child receives a COVID-19 vaccine must be decided by a judge, call Nottage and Ward, LLP at (312) 332-2915. We represent only divorce and family law matters. Our Chicago family law attorneys are known as the premier law firm in the region for this area of law.