In May 2021, Texas District Judge Travis Kitchens ordered Chris Staley, a divorcing father of 4, to get a COVID shot if he wanted visitation with his kids. The children’s mother was also ordered to get vaccinated.
Mr. Staley’s attorney advised him to follow the judge’s order, pointing out that Kitchens would be the judge determining his visitation schedule and overseeing his child custody case until his children, ages 6 to 11, reached the age of 18.
Mr. Staley disagreed. He failed to show up for his court-ordered COVID vaccination and visited his children. He contacted the media to complain about the judge’s order. His lawyer withdrew from his case.
Mr. Staley will be back in court this month to finalize his child custody case. It remains to be seen whether his failure to follow a court order will affect the judge’s final ruling, or whether the national uproar about COVID vaccinations will result in legislative action to reign in judges’ discretion to issue such orders.
What Happens When Divorcing Parents Disagree about COVID Safety?
We don’t know from the news story how Mr. Staley’s soon-to-be ex-wife feels about the vaccination order, or her husband taking their children while he is unvaccinated. She’s not talking.
But a lot of family law attorneys across the country are talking, and they’re saying they are inundated with questions from clients who have yet more things to fight about with their ex.
- Can I keep my children home if my ex hasn’t been vaccinated?
- Can I prevent my ex from taking our kids for visitation if he/she refuses to wear a mask, or refuses to have my kids mask up? (Or the other way around for parents who don’t want their children to wear a mask.)
- Can I prevent my ex from taking my child to get vaccinated? Can I force my ex to get our kids vaccinated?
- Can I prevent my ex from taking my children on vacation to an area of the country with a large number of COVID cases?
Shared Custody Means Shared Decision Making
Most Texas parents have shared legal custody, even if they don’t have the exact same amount of physical custody. That means that they have to agree on things like medical care. (If only one parent has legal custody, then that parent makes the decision.)
If parents disagree about masking and COVID vaccinations, visiting family and traveling, they will have to negotiate an agreement. They might need the help of a child custody lawyer. They might choose to work with a family mediator.
If they still can’t agree, a parent can petition the court to make the decision for them.
While COVID is a new problem, disagreements about vaccination and medical care have been around for a long time. The judge will arrive at a decision based on what he or she thinks is in the best interest of the child.
In the case of Mr. Staley, he says his kids are healthy and have no underlying medical issues that would put them at increased risk should they get COVID. If the children’s mother disagrees, she may choose to bring medical witnesses with her to court.
A pediatrician could make the case for vaccination by talking about the number of healthy, young people becoming affected by the new Delta variant, the increasing number of cases of long-haul COVID, or the 151 confirmed cases (by June 2021) of pediatric multisystem inflammatory syndrome (MIS-C). MIS-C is a rare but life-threatening response in children to a COVID infection in which multiple organs become inflamed and fail.