Health Care and Vaccination Decisions for a Child

Parents have the right to consent to a child’s medical and dental care. Texas Family Code 151.001(a)(3). Those rights also include the right to allow immunization of their children. As a parent conservator, you have the right to do so under Chapters 151 and 153 of the Texas Family Code. 

A parent may consent to their child’s medical, dental, and surgical treatment when there is an immediate danger to the child’s health and safety. Texas Family Code 153.073(a)(8).

When their child is with them, a parent may consent to the child’s medical and dental care that does not involve an “invasive procedure.” Texas Family Code 153.074(3). Chapters 151 and 153 of the Texas Family Code give parents the right to allow medical care. But, it is unclear whether immunizations are an “invasive procedure.”

If you have a court order, your right to vaccinate your child depends on the type of conservatorship you have. Read your court order. Every court order is different. If you do not understand it, talk to a lawyer who can help explain it.

If parents are joint managing conservators of the child, they usually share rights and duties over the child. These rights and duties explain the decisions a parent can make for their child. These rights and duties are either:

1. Independent to each parent, meaning each parent can decide without the consent of the other parent;

2. By the joint agreement of the parents, meaning the parents must agree to the decision; or

3. Exclusive to one parent, meaning that the parent is the sole decision maker. Texas Family Code 153.071.

Some orders may name the child’s pediatrician a tie-breaker if parents cannot agree. Other orders may require parents to consult with each other before making a decision. If neither parent has the power to make a final decision, or if you do not understand your rights and duties, talk to a lawyer.

A parent sole managing conservator has the exclusive right to consent to a child’s medical, dental, and surgical treatment that does involve an invasive procedure. Texas Family Code 153.132(2). 

If you do not have a court order and are separated from the other parent, you can file a suit affecting the parent-child relationship (SAPCR). As part of the SAPCR, you can ask the judge to make orders about conservatorship and what kinds of rights and duties you and the other parent will have. 

If your order lacks specific provisions about who decides about vaccines, and you and the other parent disagree, you may need to file a modification suit. Courts in Texas can use Texas Family Code 153.134(b)(2) to give rights for a particular parent to make coronavirus-related decisions for a child. In a 2012 case—In re A.J.E.—a Texas appeals court addressed the issue of immunizations. There, the parents disagreed about vaccinating their child against vaccine-preventable diseases. A pediatrician had examined the child and offered an opinion that vaccination was in the child’s best interest. 

Depending on where you live in Texas, your result in the trial court or on appeal could be different. The Texas Supreme Court has not ruled on this issue. 

If you and the other parent have been ordered to agree before making a health care decision for your child and there is a disagreement regarding vaccinations, then you can refuse to vaccinate your child. A disagreement may prompt a parent to file a modification to change the order and ask that one parent have the exclusive right to make immunization decisions.

Additionally, both parents can agree not to vaccinate their child if immunizations are being declined for reasons of conscience, including a religious belief or if the vaccine is medically contraindicated based on the opinion of a licensed physician in the United States who has examined the child. Texas Health and Safety Code 161.004(d).

It depends on your court order and what kind of conservatorship arrangement you have.

If your court order says that you and the other parent must agree before making a health care decision for your child and the other parent vaccinated against your wishes, you might have the option to file an enforcement action to address this violation. 

If your court order states you and the other parent have independent rights and duties, then each parent could vaccinate the child, even if the other parent disagrees. Usually, a parent must let the other parent know about these decisions. If the other parent did not let you know, you could file a modification to address any similar disputes in the future.

If your order does not contain specific provisions for vaccinations and you and the other parent are struggling with a decision about immunizing your child, you may need to file a modification suit. Filing a modification will allow you to request the court to consider changing your order to include orders about vaccinations, including asking for a parent to have the exclusive right to make decisions about the child’s immunizations. 

You must follow your current court order until a new order is made. Not following your court order could result in an enforcement action being filed against you.

Consent for a child’s medical, dental, and surgical care may be made by a nonparent if a parent or person with the right to consent to such care cannot be contacted and they have not given actual notice that prevents a nonparent from consenting to such care. Texas Family Code 32.001. 

Additionally, in limited circumstances, a child can consent to their own medical, dental, and surgical care. Texas Family Code 32.003.

A court cannot order the termination of the parent-child relationship based only on evidence that a parent declined immunization for the child for reasons of conscience, including a religious belief. Texas Family Code 161.001(c)(5).

Currently, there is no specific law addressing the covid-19 vaccine and children under 18. The court has the ability to order specific rights for a parent under Texas Family Code 153.134(b)(2). The law is broad enough to include a right for a parent to make covid-19 related decisions for their child, including whether they can receive the covid-19 vaccine. 

If you and the other parent disagree about your child who is at getting the covid-19 vaccine, talk to a family law attorney.