Henrico County in Virginia granted a license to administer a vaccine in 1800. The vaccine? Smallpox, eradicated worldwide since 1980. Vaccines and vaccination requirements are nothing new. Today Virginia public schools, at the order of the Virginia Department of Health, require 11 vaccinations for admission. But what if parents do not agree on vaccinations? How do they protect their rights and also protect the health of their kids after divorce?

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Two Types of Custody in Virginia

Under Code of Virginia § 20-124.2, physical and legal custody are two different methods of protecting your kids after separation and divorce:

  1. Physical custody — The children are under the care and supervision of a custodial parent, who provides shelter, clothing, food, and amenities; the other parent is the noncustodial parent
  2. Legal custody — Decisions regarding the children’s educational, medical, dental, and religious experiences are made by the legal custodian; the other parent has no legal foundation to attempt to overrule those decisions

With both forms of custody, duties and responsibilities can take different forms:

  • Joint physical custody
  • Sole physical custody
  • Joint legal custody
  • Sole legal custody

If your ex-spouse has sole legal custody, you get no legal say in the medical decisions of your children. This applies to any non-emergency care, like vaccinations, annual checkups, and assessments of Body Mass Index (BMI) by the school nurse. You are not the legal custodian. You can cajole, plead, request, or hint, but you cannot assert any legal control over your child’s healthcare. Only the legal custodian recognized by the Virginia Circuit Court in its final divorce decree can make decisions.

If you and your spouse have joint legal custody, every non-emergency decision (of any kind) has to be made with approval from both of you. For most issues, the two of you have time to discuss and agree:

  • Choice of daycare
  • Metal braces or plastic for that crooked smile?
  • Mainline religion, no religion, or an evangelical group

In emergencies, either parent with joint legal custody can make a decision regarding the child’s medical care. In other medical situations, the two parents need to agree.

And when they do not agree, the only recourse is a return to court.

With two parents holding joint legal custody and disagreeing on a medical matter, attorneys will once again need to step in to litigate the choice in court.

While courts historically respect parents’ choices and ultimate authority to guide their children’s moral and emotional lives, Virginia’s courts must balance private concerns with public good.

In the case of vaccinations, the legal requirements for school vaccinations are firmly established and have a long history in the Commonwealth. Lawmakers, however, have carved out two exemptions — religious and medical — to Code of Virginia, Chapter 110. Regulations for the Immunization of School Children » Part III. Immunization Requirements:

No certificate of immunization shall be required of any student for admission to school if:

  1. The student or his parent or guardian submits a notarized Certificate of Religious Exemption (Form CRE 1), to the admitting official of the school to which the student is seeking admission. Form CRE 1 is an affidavit stating that the administration of immunizing agents conflicts with the student’s religious tenets or practices. The form is available on the Division of Immunization website at http://www.vdh.virginia.gov/immunization/requirements; or
  2. The school has written certification on either of the documents specified under “documentary proof” in 12VAC5-110-10 from a physician, registered nurse, or a local health department that one or more of the required immunizations may be detrimental to the student’s health. Such certification of medical exemption shall specify the nature and probable duration of the medical condition or circumstance that contraindicates immunization.

Before an anti-vaccination parent embraces these escape routes, consider the third part of the law:

  1. Upon the identification of an outbreak, potential epidemic, or epidemic of a vaccine-preventable disease in a public or private school, the commissioner has the authority to require the exclusion from such school of all children who are not immunized against that disease.

The parent who does not want to immunize a child as a school district requires risks having the child excluded from school.

Before a Virginia judge, evidence is required to support both sides:

  • Suppose one parent has the weight of the research from the Centers for Disease Control, medical professionals’ affidavits or depositions, and a history of other immunizations provided to the child
  • The other parent has a general sense of unease — a strong emotional opposition — with vaccinations based on superficial investigation; without the documentation of religious or medical exemption, the emotional parent has a far weaker argument and little or no evidence.

Parenting is a highly respected and important occupation in the United States. Expertise develops through experience, as any parent changing a diaper will tell you. Expertise in parenting, however, is not a replacement for years of medical school and access to scientific research. Just as few Virginia men pursue pro se legal actions, few Virginia parents are educationally qualified to fully protect their children’s health without the benefit of medical professionals.

For support from legal professionals, contact The Firm For Men today, or call our offices at (757) 383-9184. We can provide experienced, trustworthy counsel in all aspects of family law, including child custody.