What happens when divorced parents with joint legal custody disagree about whether their child should be given the routine childhood immunizations? That’s the issue in Grzyb v. Grzyb (Va. Cir. Ct.), decided in mid-2009 but just uploaded to Westlaw a day or two ago.The judge tried to rule based on the BIOTCh, and got hopelessly confused by conflicting and irrelevant considerations. Volokh cannot figure out what he would do either, but starts with these faulty premises:
The Grzybs were the divorced parents of a 3-year-old girl, with “joint legal custody of the child, which implicitly included joint decision-making regarding the child’s medical and health care.” The father wanted the daughter immunized, but the mother had a religious objection to the immunization
since joint custody presupposes an ability to agree — and one parent should be given sole custody as to medical matters. But which parent? ... there has to be one decision made on the child’s behalf, so it makes sense that the court would need to decide which parent is most fit to make that decision.This is where he goes wrong. There is no necessity for one parent to make all the medical decisions. Once you go down the rabbit hole of a judge second-guessing minor parental decisions, there there is no end to the conundrums like this case.
Saying that the mom is more fit to make a vaccination decision just because she has spent more time on the matter is absurd. She may have spent most of that time praying, and her church does not even agree with her religious objection. The other considerations are also intrusions into parental rights.
There is just no reason for the court to get involved. The parents can each do what they want on their own time. Maybe they would use different pediatricians, and make different decisions. There are some scenarios in which a medical treatment might require the cooperation of the other parent, but this is not one. The dad could get the vaccination, and the mom's interests will not be harmed in any tangible way.
This is all based on vaccinations being within the range of decisions that parents are normally allowed to make. Some people feel very strong about vaccination, one way or the other, but it is very unlikely that the decision will make any noticeable difference. If there is some compelling medical necessity, then this case would be different.
I have several comments on the above blog, where I argue with lawyer-types who want to use courts to overrule parents. The funny thing is that the blog is fairly libertarian on other issues, and is frequently promoting free speech, gun rights, and marijuana legalization. But they don't seem to understand that the family court is a massive invasion of civil liberties.
I have refrained from discussing the medical problems of my own kids, but I can say that making one parent solely responsible for medical decisions has been a disaster. It is nearly always better for both parents to be involved, even if they disagree. Letting a judge make the decision is worst of all. In the above case, the judge decided that the dad had the more valid opinion, but let the mom make the decision anyway.