Court Can Order Vaccination of Children When Divorced Parents Disagree

Starting at Burch v. Lipscomb…………………………………………………

Danielle Burch … objected to vaccinating her children based on her religious convictions, while joint custodian Paul Lipscomb … desired that his children be vaccinated….

On June 15, 2018, the parties filed for divorce. They were granted joint custody of and equal timesharing for their children, aged 8 and 6. The parties had agreed during their marriage to deny their children any religious immunizations. Both had signed affidavits declining immunizations of their children in Georgia and New York. After their divorce on October 12, 2018, both of them signed the Commonwealth of Kentucky form declining religious immunizations.

Two years later, Father, however, filed a motion to allow him to vacinate his children. Mother protested and an Anderson Family Court hearing was held to determine the issue.

Father stated that he initially agreed to not vaccinate children as he was going on deployment in the military. He was also unable to visit the pediatrician. He believed there was an agreement between the parties that would delay vaccines. He was discharged from the military and began to have conversations with Mother about vaccines.

According to Father, he was skeptical about vaccine development using aborted embryos when he signed his vaccination declination form. His concerns are no longer valid as he now thinks the aborted embryos have been so removed from vaccine development that they can be used in a different way. He thinks it appropriate to vaccinate children. To vaccinate, he will follow the instructions of his pediatrician.

Mother objects strongly. She argues doing so violates her firmly held religious convictions opposing the use of aborted fetal cells in the manufacture and design of the vaccines…. Mother claims there was an agreement between Father and Mother that children shouldn’t be vaccinated. Multiple documents were produced by the parties to this effect.

Family court ruled that it was in children’s best interests to get vaccinated. The court argued that the health and well-being of the children outweighed religious convictions. The court ordered that the parties consult with the pediatrician to craft a “catch-up” schedule bringing the children current on vaccinations and other immunizations, or, if the parties were able, to agree to alternative vaccines that could potentially be utilized that do not use aborted fetal cells in their development and design….

Mother, citing Kentucky law, argues that the family court can’t order vaccination.[s] of any child whose parents or guardian are opposed to medical immunization against disease, and who object by a written sworn statement … based on religious grounds[.]Father counters that the statute does not refer to the singular but the plural of “parents”. The father argues therefore that the court should decide whether one parent objects or not. This is consistent with family law.

This area of jurisprudence already considers the constitutionally protected parental rights to ensure their children are raised free from undue government interference. The cautions and generally applicable safeguards of that jurisprudence embrace Mother’s specific claim under the First Amendment to the federal Constitution….

These constitutionally protected rights are the starting point.[s]Liberty interest[s] necessarily exist coterminously, and jointly, in two people—the child’s mother and the child’s father.” We are in an impasse with Father and Mother. Our jurisprudence addresses this situation.

“[A]If the family court is exercising its jurisdiction properly, it has the inherent power to “break the tie” when the joint custodians are unable to agree. Furthermore, joint custody is possible even if the courts have been involved. However, “equal decision making power” does not apply to joint custody. In fact, parties and trial courts may give more authority to one parent than another, regardless of whether they are part of a joint custody agreement. …

The family court … conduct[ed]As required, the hearing heard both Mother and Father’s testimony. The family court determined that the best interests of the children would be to have their vaccines administered in compliance with the recommendations and guidelines provided by the Centers for Disease Control and Prevention (CDC). This was the family court’s view on the child’s welfare and health.[c]Even when one parent professes religious beliefs, ourt will always be the first priority.”

The Court made the same decision in analogous situations involving First Amendment objections of one parent. Young v. Holmes, 295 S.W.3d 144 (Ky. App. 2009). 2009 YoungAs in the case above, after an hearing, the family court reached an informed decision that was in the best interests of the children. We cannot say the family court’s factual findings lacked the support of substantial evidence, and we cannot conclude that it made any legal error in reaching its decision….