The recent Disneyland measles outbreak has reinvigorated the debate over vaccinations. While the Centers for Disease Control and Prevention (CDC) declared measles eliminated from the U.S. in 2000, a growing number of parents opposed to vaccinations (for religious and other reasons), combined with infected people entering the country from abroad, have facilitated the spread of the disease (from Jan. 1 to Feb. 6, 2015, the CDC reports 121 people in 17 states have measles).
For parents on opposite sides of the debate, deciding whether to vaccinate their children can get contentious. This can be especially true when the parents are divorced. According to Connatser Family Law Attorney Christine Powers Leatherberry, “There are different parental rights and duties set out in a final court order involving children. One of the rights is to consent to invasive medical procedures, which includes shots such as vaccinations.”
What Is in the Best Interest of the Child Matters Most
As it pertains specifically to the measles story and vaccinations, Christine says, “We believe most judges in Texas would find that a measles vaccination is in the best interest of the child, especially after hearing expert testimony. And what is ‘in the best interest of the child’ is the primary guiding force for the judge.”
Measles can be deadly and also puts those afflicted at risk for encephalitis (swelling of the brain) and other health issues. According to the CDC, before the measles vaccination program went into effect in 1963, an estimated 3 to 4 million people in the U.S. contracted measles annually. Of those infected, 400 to 500 died, 48,000 were hospitalized and 4,000 developed encephalitis. These statistics would likely be quite compelling to a judge.
“There are three options for parents regarding invasive medical procedures for their children. On rare occasions, one parent will be awarded/have the sole right to make all medical related decisions for the child. However, in most cases, the custody order will include one of two joint right options pertaining to invasive medical procedures: independent rights or joint subject to the agreement of the other parent rights,” explains Christine.
When parents agree to independent rights, each parent can independently make a decision to allow the child to have an invasive medical procedure, though they typically need to notify the other parent first. “A notice provision will normally accompany the independent right option. The parent then is required to give notice to the other parent prior to the procedure. If the other parent disagrees, they will need to seek an injunction from a judge to prevent the procedure from taking place.” Christine says.
Parents Can Seek Emergency Medical Treatment without Consent
It’s important to note that parents do have a right to consent to emergency medical procedures and treatments, without the other party’s consent. “For example, if the child hurts himself on a ski slope or needs an emergency appendectomy, you don’t need to get consent or an agreement in those cases. Whether you see your child every day or once per year, parents can seek emergency treatment without having an agreement,” Christine advises.
Christine typically recommends clients seek the joint subject to the agreement of the other parent option for invasive medical procedures when negotiating a child custody and visitation order. “When it comes to invasive procedures, the subject to the agreement of the other parent language (or joint right) is typically better, because you can’t always rely on the other party to follow the procedures outlined in the notice provision of their final court order. If the two parents don’t agree to the procedure, then it’s up to an arbitrator, mediator or judge to decide, and it’s usually a judge. Instead of seeking an injunction (as in independent right scenarios), one of the parties will seek permission to proceed with a procedure for their child,” she says.
The judge will likely take expert testimony from competing experts and/or doctors on both sides, and then he or she will weigh the evidence before making a decision. Judges will weigh credibility of the experts to determine whom he or she believes, and above all, consider what is in the best interest of the child, rather than the parents.
In some cases, particularly with cosmetic surgeries, Christine finds, “along with hearing testimony from the experts and both parents, the judge may also want to talk privately with the child in chambers. This could help the judge discern whether the parent is behind the procedure or if it’s something the child wants. Under Family Code Section 153.009, the court can interview a child in chambers about any issue affecting the parent-child relationship.”
Elective Plastic Surgery Is Considered Invasive Too
Vaccinations aren’t the only invasive medical procedure that parents squabble about when it comes to their kids. Family law attorneys have seen parents fight over plastic surgery, dental procedures (wisdom teeth, cosmetic dental procedures, etc.), tonsillectomies, prescription medications, cancer treatments, other elective surgeries and more.
According to Christine, “One of our attorneys had a case of a 16-year-old whose mother asked the father to consent to an elective plastic surgery procedure for the child. The parents took the case to a judge, who heard expert testimony from both sides. The judge, after hearing from doctors, found that the procedure wasn’t medically necessary or in the best interest of the child.”
Plastic surgery is one of those situations where the joint right option is typically best for both parties. “With the independent right, the mother could have decided to allow her child to get plastic surgery, without even telling the father. In an ideal world you would hope that everyone would comply with the notice provision procedures, but not everyone does,” says Christine.
Prescription Meds and Cancer Treatments May Also Leave Parents at Odds
Some parents might argue that certain prescription medications fall into the realm of invasive procedures too. For example, if a drug has the potential for severe side effects, say it may cause suicidal thoughts, paralysis or vision loss, a parent may oppose their child taking it.
From personal experience, Christine has also seen how choosing cancer treatment options for a child could cause dissent between parents. While her parents aren’t divorced, they did agonize over decisions regarding her sister’s treatment for stage IV lymphoma.
“My sister was 21 and in college when she was diagnosed with cancer. My parents debated whether she should get radiation treatments, because it increases the risk for future cancer. It was a big decision my parents had to make in conjunction with medical advice at Stanford University, but at least my parents were making it together,” Christine recalls.
In a similar situation, where divorced parents are making decisions about cancer treatments for their child, the joint right option could help prevent a very stressful situation from getting out of control. At a hearing, the parents can each tell their side of the story, but the decision remains in the hands of the judge, who has the benefit of expert testimony.
Make Your Wishes Clear in Advance
Parents who are concerned about vaccinations and other invasive medical procedures for their child should clarify their beliefs early in the child’s life, and preferably, before a couple agrees to have kids together. In cases of child custody, Christine says, “The big takeaway here is to make sure that the final custody orders require both parents who are appointed joint managing conservators to agree to invasive medical procedures for their children.”
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