If you follow the COVID-19 news cycle, you know that there is approval for the COVID-19 vaccine booster for children ages 5-11.  What happens when a parent who was granted authority for the initial vaccine for a child in that age range and now wants to get the child their booster?  Does the initial decision automatically mean the child obtains the booster?  Maybe not…

In a recent Pennsylvania case, mom was granted authority to choose whether to have the child obtain the initial two doses of the COVID-19 vaccine, for a child in the age range of 5-11, over dad’s objection.  Dad filed an appeal, seeking to have the order stayed (not in effect pending the appellate decision) and part of his argument was mom’s ability under the order to obtain another shot for the child (presumably, an ambiguous ability that wasn’t explicitly stated in the order but its written word could be interpreted that way).  Dad’s application was denied because mom already had the child vaccinated; thus, his request was moot per the panel of judges who heard the matter.  However, the panel specifically indicated that the request was moot because the two doses were complete AND the child was ineligible for a booster.

Coincidentally, the day before the decision was released, the Pfizer booster was approved for the age range.  This begs the question, can mom now use the initial order to get the child a booster, and not just in this case, but in all cases to date where a parent was given sole authority to make a decision about the COVID-19 vaccine for a child.  In the Pennsylvania matter, the transcript should specify the court’s intent for only the two initial shots, and not the booster given that the court specifically pointed to the child’s ineligibility at the time, even if the Order does not explicitly carve out the exception.

However, in other matters where it may not be so clear, did the court overshoot its intention with a broad order, such as if a court did not carve out specifics with respect to the amount of shots, or limiting the decision to the initial vaccine, or even if it simply granted sole legal custody to make a vaccination decision?  On the flip side, perhaps a court in such a case anticipated that a booster would be available and wished to avoid an annual argument over the vaccine if vaccinated individuals get a yearly shot, like we do for the flu.  These are the types of questions raised by the attorneys who worked on the Pennsylvania matter and are interesting to think about.

As practitioners, we should all go back and look at the wording of the COVID-19 vaccine orders received to date, and be sure to seek specific language for such orders in the future, regardless of the side you are arguing.

Another interesting aspect is how quick the vaccinating parent acts after the order’s entry.  A party filing an emergent appeal could be stopped in their tracks if the vaccine (even shot 1) is already complete.  But if the vaccine has not been given yet, and the appellate court agrees that the trial court made a mistake + that it’s emergent, then the parent who disagrees with the vaccine may have another “shot” (pun intended).

At the end of the day, in my jaded opinion, I have to assume that the court will likely allow the booster for the same reasons it allowed the initial vaccine, absent proof that it’s unhealthy for children (which the FDA/CDC doesn’t seem to support).  The initial order sets precedent. But finding the creative argument as to why the court should stray from that order is where good representation comes in.

Like many issues over the COVID-19 pandemic’s impact on family law matters, only time will tell.

Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP