Often times the Pittsburgh child custody attorney is faced with rising social issues. This may not be more true than with the recent measles outbreak. You have probably seen recent news stories about the rise of measles cases in Pennsylvania. Pennsylvania is one of 28 states reporting measles outbreaks. The CDC reports that over 1000 cases have been reported nationwide, largely in under-vaccinated areas. Vaccinations, or lack thereof, raise an interesting issue in family law regarding legal custody disputes: How would a court determine a legal custody dispute where the parents disagree over vaccinations?
Pennsylvania defines “legal custody” as the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.” Generally, parents share legal custody absent evidence of neglect or abuse. Legal custody is not physical custody. In contrast, “physical custody” is the right to possession of the minor child. Courts determine custody by considering sixteen (16) different statutory factors outlined in 23 Pa.C.S. 5328.
The custody statute is largely silent as to medical care. However, one of the factors courts consider is whether one party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. As I noted above, legal custody is often shared, meaning the right to make medical decisions is often shared. So, what if two parents share legal custody of their child and disagree over whether to vaccinate? What rights do the parents have to object to vaccinations?
Schooling and Objections
There are currently no cases or law in Pennsylvania requiring parents to vaccinate their children with one caveat: schooling. Pennsylvania requires vaccinations for children attending public, private, and parochial schools. Schooling includes kindergartens, special education classes, home education programs and vocational classes. Parents may object to vaccinations on limited grounds. For instance, a child may be exempt from vaccines if the child’s physician determines the vaccine would be detrimental to the child’s health. Similarly, children may be exempt from vaccines if the parents object on religious grounds or the basis of a strong moral conviction.
But, what if the child is not of school age or the parents cannot agree on religious grounds? To date, the cases do not address this specific issue. However, several cases offer some guidance. The Pennsylvania Superior Court noted in the Allegheny County dependency case of In re A.M.P, that there is no “relevant, legal obligation [regarding vaccinations] with which parents currently must conform” outside of the schooling requirements. 2017 Pa. Super. Unpub. LEXIS 2617. However, the Berks County Court of Common Pleas indicated in Morganti v. Morganti that a failure of a custodial adult to provide immunizations for children can be considered as one of several factors in awarding custody. 27 Pa. D. & C.5th 241, 263 (2013); see, also, T.B. v. S.H., 2016 Pa. Super. Unpub. LEXIS 38 (discussing how the custodian that was awarded legal custody assumed duties of care-taking including getting child vaccinated).
Court’s Likely Approach
In conclusion, the few cases available indicate that a Court will look at the totality of the evidence in determining a custody arrangement. A court will likely contrast any dispute between parents regarding vaccinations with other relevant factors outlined in the statutes. The Court will look closely at which parent is more likely to promote the emotional, psychological, and physical well-being of the child, including well-child checkups and vaccinations, as well as several other factors. However, it is unclear what weight a judge will give to the failure of a custodian to get the child vaccinated or whether that can make or break a case.
What is clear is that the debate over vaccinations is not going away any time soon. In neighboring New York the legislature recently voted to abolish religious exemptions from vaccination laws. Other states have also taken up the debate. Pennsylvania considered at least one bill in the most recent session to abolish philosophical exemptions to vaccinations. In short, it is increasingly likely that some parents will face conflict over the issue to vaccinate their children.
If you or a loved one are involved in a child custody dispute involving vaccinations or immunizations, contact the Pittsburgh family law firm of Dodaro, Matta, & Cambest, P.C. today at 412-243-1600 to schedule a consultation with a child custody attorney.