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A Canadian man  made headlines after “losing custody” due to his COVID-19 vaccination statusand he’s not alone. Myriad people have attempted to modify their custody orders based on their ex’s vaccination status. Though the decision to receive the vaccine is a personal one, it has become highly politicized, and even weaponized in some custody battles. The case of the Canadian man “losing custody” of his three children has both vaccinated and  unvaccinated parents wondering if a parent can really “lose custody” due to vaccination status alone.

No Two Cases Are the Same

If you’re unvaccinated, and you’re concerned about losing custody of your children, remember that no two cases are the same. The man who “lost custody” of his children due to his vaccination status was living in Canada where the laws are different. The court’s decision was primarily based upon the fact that one of his children is immunocompromised. Also the articles that have reported on the issue haven’t been clear on what losing custody actually means in that case. Without more explanation, a loss of custody could mean a temporary suspension or complete loss of contact with the children. In that case, his in-person parent-time was temporarily suspended until the circumstances had changed in a way that his children would be safe from an unreasonable risk of harm in his care. The court also granted the other parent to unilaterally decide and obtain vaccinations for the children. The court did order him to have virtual parent-time in the meantime. In the United States, it would be extremely unlikely that someone would permanently lose custody based solely upon their vaccination status alone.

Is There a Custody Order?

A lot of this may depend on whether or not you already have a custody order. In the case of the Canadian man, it appears he already had a custody order in place, and then the custody order was modified because of his vaccination status. When courts are deciding custody arrangements, they consider what is in the best interest of the children involved. In Utah, when courts are going to modify custody orders, they’re going to look at whether or not there has been a significant change of circumstances in addition to the change being in the best interest of the child. In order for parents to have a temporary change in custody where there are custody orders in place, they need to show that there is a threat of immediate and irreparable harm. For example, in the case of an immunocompromised child, the child being exposed to COVID-19 may be very dangerous and meet that standard.

What Do Judges Look For?

Judges try not to change custody orders too frequently because it may result in instability in a child’s day-to-day life. Therefore, there needs to be a material and substantial change in circumstances in order for a court to be willing to permanently modify a custody order. This may include, but is not limited to, a court deciding that a child is not safe with a parent, a parent is alienating a child, the parent has ongoing substance abuse, or mental health issues, that interfere with their ability to effectively care for a child. There are a lot of other situations in which a child may be removed from a parent’s custody or modification of parent-time with either parent.

Can You Deny Your Ex Parent Time?

If there’s a court order for custody, each parent has a legal right to see the children based on the schedule detailed in the custody order. Neither parent can prevent the other from seeing the children during their court ordered parent time; doing so may be custodial interference. If you prevent your children from seeing your ex during their parent time, it could be used against you in a custody battle in the future, or result in a criminal charge for custodial interference. If you have concerns about your unvaccinated ex having access to your children, you will need to have the court issue and order temporarily modifying the custody order. Though a lot of parents have attempted to do this, there have been no reports of parents successfully reducing their ex’s parent time based on vaccination status in Utah.

Can You Vaccinate Your Kids without Your Ex’s Permission?

Whether or not you need your ex’s permission to vaccinate your children depends on what kind of custody you have. If you and your ex share legal custody of your children, you likely do need your ex’s agreement to vaccinate the children. If you and your spouse cannot come to an agreement on whether or not to vaccinate the children, you will need to look at your orders to see what method of dispute resolution or decision making has been ordered. If there is a procedure for making that decision, you should follow that procedure. If there isn’t a procedure, and you cannot come to an agreement, the parent with the majority of parent-time has the presumptive final say. The other parent may seek the court’s intervention to review the circumstances and best interests of the children.

When You’re Concerned about Losing Parent Time

It’s unlikely that a parent would permanently lose custody of their child based solely upon their vaccination statusespecially if the child is vaccinated, or not uniquely vulnerable to the negative effects of COVID-19. However, this does not stop some parents from trying to reduce the amount of parent time their ex has. At CoilLaw, our attorneys can help ensure that your rights as a parent are protected in a custody battle. If you’re concerned about losing custody of your children, contact CoilLaw today for a consultation. 

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