This fall, as we enter the second school year of the COVID-19 pandemic, many parents are dealing with challenging issues related to COVID-19 and their school-age children, including whether to send children to school in person, whether to vaccinate children ages 12 and older, and how to navigate the constantly changing landscape of mask mandates, recommendations, testing, and other COVID precautions. These issues are challenging for all families right now, but especially for divorced parents with joint decision making.
What is Joint Decision Making?
In every Colorado divorce involving children under the age of 18, courts must decide how to allocate parental responsibilities, which includes parenting time and decision making. While parents will generally be permitted to make day-to-day decisions involving their children, including what they eat, wear, and how they spend their free time, the court must decide whether parents will jointly make major decisions involving education, such as choice of school, health care, and which extracurricular activities the children will be involved in if the activity will occur during both parents’ parenting time.
Whether decision making for these major decisions is sole to one parent or joint depends on a number of factors specific to each case, but in general, the court will allocate decision making in the best interest of the child. In Colorado, courts generally prefer to allocate decision making jointly between the parents unless there is a strong history of an inability to make decisions jointly or there are other factors that make joint decision making inappropriate, such as a history of domestic violence or mental health or substance abuse concerns involving one or both parents. When these factors are present, courts may appoint a professional, such as a Child and Family Investigator or a Parental Responsibilities Evaluator, to evaluate and make recommendations regarding the allocation of parental responsibilities, including decision making.
You Have Joint Decision Making and Can’t Agree – Now What?
Some of the most challenging cases are where a court has allocated joint decision making to parents and parents cannot agree on issues involving education or major medical decisions. Unless the court has appointed a decision maker or has mandated mediation, parents only option in situations where they disagree on major decisions is to ask the court to decide the issue. Due to a pair of conflicting Colorado cases on this issue, judges in Colorado are divided on whether they even have the authority to act as the decision maker when parents cannot agree on a joint decision. Apart from asking the court to make the decision, parents can also request to modify the allocation of decision making from joint to sole, meaning one parent will be able to unilaterally make major decisions.
Under C.R.S. § 14-10-131, in order to change a prior order regarding decision making, the court must find that the existing order endangers the child. While difficult to prove endangerment in cases involving disputes of education or extracurricular activities, parties have a stronger case for endangerment in cases involving health care decisions.
Shared Decision Making and Vaccines
Since the start of the COVID-19 pandemic, divorced parents and Colorado courts have been faced with a number of challenging questions related to children’s health and safety. Now that COVID-19 vaccines are available for children ages 12 and older, parents are confronted with issues involving whether to vaccinate their children and what to do if one parent wants to vaccinate and the other doesn’t.
Colorado currently does not allow children under 18 years of age to obtain a vaccination without parental consent, so even if a child would like to receive a vaccination, health care providers will not administer a vaccination without a parent’s signature.
Because of the time it takes for a case to proceed to a written decision from the Colorado Court of Appeals, there are no published Colorado cases addressing the question of whether a parent’s decision not to vaccinate his or her child against COVID-19 constitutes endangerment, but the Colorado Court of Appeals recently addressed a related question regarding vaccines prior to the pandemic.
In re Marriage of Crouch
In the recent case In re Marriage of Crouch, 490 P.3d 1087 (Colo. App. 2001), the Court of Appeals considered whether decision making should be modified to give father sole decision making for health care decisions based on his interest in vaccinating the children over mother’s objection due to her religious beliefs. The trial court found that mother’s refusal to vaccinate the children endangered them, but the trial court also said Father had to show there would be substantial harm to the children by remaining unvaccinated in order to change decision making. The Court of Appeals reversed the trial court, holding that there was no heightened burden required to change decision making and that once the trial court found the children were endangered by a decision, Father did not also need to show there would be substantial harm.
Application of In re Marriage of Crouch to COVID-19 Vaccines
While the Court of Appeals has not yet had an opportunity to address this issue in the context of COVID-19 vaccinations, the Crouch case arguably sets a precedent that a parent’s refusal to vaccinate a child against COVID-19 constitutes endangerment sufficient to justify a change in decision making from joint to sole decision making. It is important to note that the parent objecting to vaccination in Crouch did so based on her religious beliefs and not due to particular health concerns related to the child. Parents objecting to vaccinating their children for reasons related to the child’s health conditions may have a better argument that their decision does not endanger the child.
Another important consideration is whether the child’s school has implemented different protocols for vaccinated versus unvaccinated students over the age of 12. If non-vaccinated students are subjected to different learning environments (remote versus in person, for example), or are separated from peers during lunch and activities due to their non-vaccinated status, the parent seeking to vaccinate may have a more compelling argument that the refusal to vaccinate endangers the child because the child may be treated differently in the school setting.
Judges’ View on the COVID-19 Vaccine and Decision Making
Judges we consulted for this article reported that there is no consensus on the bench regarding whether a refusal to vaccinate a child against COVID-19 constitutes endangerment. Judges advised that factors they would consider in making this determination include:
- Does the child have an underlying health condition that makes him or her more susceptible to complications from COVID-19?
- Does the parent objecting to vaccination have equal parenting time?
- Is the majority parent the one making the vaccination request?
- Does the child’s vaccination status impact his or her attendance at school?
- What is the objecting parent’s reason for objecting to vaccination?
As COVID-19 vaccines receive full FDA approval and approval of the use of the vaccines in children under 12 appears imminent, divorced parents will continue to face challenging issues related to joint decision making and COVID-19 protections, including the decision of whether to vaccinate.
Each judicial officer will resolve disputes related to vaccinating children on a case-by-case basis with little guidance from case law because the issues related to the COVID-19 vaccines have not been addressed by the Colorado Court of Appeals or Colorado Supreme Court. In the event of a dispute about whether to vaccinate a child against COVID-19, courts may consider who is making the objection and the amount of parenting time that parents has, as well as the stated reasons for objecting to or arguing in favor of vaccination.
Because of the time it takes to modify decision making, parents who disagree over issues for which they have joint decision making should attempt to resolve disputes outside of court or through mediation whenever possible. If those efforts fail, the parent seeking to change decision making should file a motion to modify decision making and should be prepared to argue that the prior allocation of decision making endangers the child.
Jennifer Schaffner is an Attorney at Griffiths Law PC. Schaffner’s practice focuses on family law and appeals. She believes in finding creative solutions to cases whenever possible, but if going to court is inevitable, she knows how to advocate for her clients’ best interests.
Jamie Paine is an Attorney at Griffiths Law. Paine’s practice focuses on domestic relations matters. Paine also served several years as a prosecutor, and this helps her litigate highly contentious cases with strategy and empathy.