Children’s Immunizations, and Disputes Between Divorced Parents

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 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:

Mrs. Grzyb … testified that she first formed a religious objection to vaccinations when she was pregnant with the child, that she “prayed about it a lot,” and felt “led by the Holy Spirit” to the conclusion that the child should not receive routine immunizations. She testified that “I never felt so strong about anything outside of faith as I do about vaccination.” … Ms. Grzyb’s pastor, the Reverend Scott Mauer, … [testified] that it was not a tenet of his religion that children remain unvaccinated. Rather, he testified that “this falls into an area that we would consider to be what the Bible often refers to as disputable matters, which are areas that the Bible does not necessarily address directly.” He continues:

in those cases, historically the position that the Baptist Church has taken is that a person should apply the best understandings of our truth of the scripture and also the sensitivities believing as the Holy Spirit and come to a conviction about it. And that furthermore if they do come to a conviction based upon those things, that they are then to be obedient to that conviction because the Bible is clear that, if a person has come to a conviction that they do believe is from God, that to the best of their ability that they believe that in good faith before the Lord, that if they do not then pursue that directive of that decision that they are in sin.

Now if this were just a matter of whether two parents acting together (or a sole custodial parent) were exempt from the Virginia immunization requirement, Mrs. Grzyb’s religious objection would give her a statutory immunity (see subsec. D(1)). But in this case, the question was what should be done to the child when the two parents who share legal custody disagree. The common answer is such situations is to conclude that joint legal custody isn’t working out on this question — since joint custody presupposes an ability to agree — and one parent should be given sole custody as to medical matters. But which parent?

Here’s the court’s analysis: The court concludes that (1) getting immunized would indeed be in the child’s best interests, given the medical expert testimony that, “the risk of ‘serious complications’ [from vaccines] was ‘very low’ and that [the child] is ‘at greater risk of the diseases that the vaccines protect against, absolutely.’” But the court also observed that (2) the mother was more actively involved in the child’s medical care:

Mrs. Gzryb remains the parent primarily responsible for attending to the child’s medical needs. There have been numerous visits and phone calls to the child’s pediatrician and, for the most part, it has been Mrs. Grzyb who is the parent interacting with the child’s pediatrician and the pediatric practice. Mrs. Grzyb is the parent who took the initiative to obtain a referral to an allergist because of the child’s persistent colds, runny nose and cough, and a family history of wheat allergies. Mrs. Grzyb has thoughtfully and fully explored each medical issue that has arisen in the child’s life.

And on balance, the court concluded, the mother was therefore “in a superior position to assess and meet her child’s medical needs,” and should be awarded sole custody for purposes of making medical decisions — even though the court thought the mother’s opposition to immunization was against the child’s interest:

The Court’s sole reservation in finding Mrs. Grzyb to be in a superior position to assess and meet her child’s medical needs is the very decision that brings the parties to Court today, i.e., Mrs. Grzyb’s decision not to have the child undergo routine vaccinations. As stated above, the medical testimony is uncontradicted that the child would benefit from the vaccinations. There are, however, two significant points that should be made in this connection.

First, Mrs. Grzyb’s objection to routine immunization is substantially, although not exclusively, a religious, rather than a medical, objection. This is significant because the Court has concluded that the medical benefits of immunization outweigh the medical risks of immunization.

Second, Mrs. Grzyb’s objection is to routine vaccination and does not extend to vaccinations that are medically indicated due to a specific exposure to a particular disease. Thus, she testified that she would allow a tetanus or rabies vaccine if her child was specifically exposed to those diseases.

An interesting result, and I’m not sure what I think of it. Though I have argued at length that both divorced parents should have broad rights to speak to their children and to express their religious views to their children, that stems from the fact that both parents can retain their free speech rights at the same time. When it comes to questions about whether or not to immunize, on the other hand, 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. And I do think that a parent’s unwillingness to immunize a child, an unwillingness that appears to be against the child’s best interests, should count against the parent.

But how this should be weighed against the parent’s greater involvement in the child’s medical care is a difficult matter, which I thought I’d raise for readers who are interested in such parental rights (and child health) questions.