Now that the FDA has approved a version of the COVID vaccine for children ages 12 and up under the Emergency Use Authorization, we have been flooded with inquiries from parents concerned about who may consent to their children being vaccinated.

The short answer: with or without a custody order in place, either parent can consent to the vaccination without obtaining consent from the other parent. And, if neither you nor your coparent are available to consent, then the following people may consent to the vaccination of your child:

• A grandparent of the child;
• An adult brother or sister of the child;
• An adult aunt or uncle of the child;
• A stepparent of the child;
• The child’s school, if you’ve previously signed a consent form allowing it (Check your enrollment packets! You have the right to withdraw the consent!); or
• Any other person who may be serving as the child’s primary caretaker.

Without a court order, the only limitation on this very broad consent power is when the third-party (person or school) is attempting to consent, but you or your coparent have already made it known to the third-party that you expressly refuse consent.

Tex. Fam. Code § 32.101.

What if your Custody Order Mentions Invasive Medical Procedures?

If you have a Texas custody order, then there will be mention of, “the right to consent to medical, dental, and surgical treatment involving invasive procedures.”

You may be thinking – “surely a vaccination is an invasive procedure!” But, it’s not.

The State of Texas has refused to define “invasive procedures” in the Texas Family Code, and the Courts have refused to define vaccinations as invasive procedures. Our only source of guidance on this issue is found in the Texas Health & Safety Code, which defines invasive procedures as:

• (A) a surgical entry into tissues, cavities, or organs;
• (B) repair of major traumatic injuries associated with any of the following:
• (i) an operating or delivery room;
• (ii) cardiac catheterization or angiographic procedures;
• (iii) a vaginal or cesarean delivery or other invasive obstetric procedure during which bleeding may occur; or
• (iv) the manipulation, cutting, or removal of any oral or perioral tissues including tooth structure, during which bleeding occurs, or the potential for bleeding exists.

Tex. Health & Safety Code § 85.202(3).

I list all the gory “invasive procedures” here to illustrate that they are a far cry from a poke in the arm.

What if You do Not Want Your Child to be Vaccinated?

If you and your coparent are not on the same page (or planet!) when it comes to vaccinations for your child, then you must meet with an experienced custody lawyer about your options. Depending on your child’s circumstances and/or your personal beliefs, the Court may agree to make orders addressing vaccinations for your children.

Every situation is evaluated by the Court on a case-by-case basis, but, unless you decide to take legal action, you can do very little stop vaccination from occurring if you don’t want it and the other parent does.

What gives? It’s my kid!

Like so many other issues, the State of Texas has a very strong public policy interest in making sure the general public is vaccinated against disease. The way the State of Texas can flex that strong public policy interest is by making it as easy as possible for consent to vaccination to be lawfully given.

If you and your coparent are not aligned regarding vaccinations, then it is imperative you consult with an experienced custody attorney to discuss your options for a legal proceeding.

Silver lining?

Unless specifically limited in your custody order (commonly via a Protective Order due to family violence), you and your coparent are required to notify each other of significant information regarding your child’s health. So, if either of you consents to the vaccination of your child, you must notify the other parent right away.

If you believe your coparent is failing to keep you informed of this significant information, if your current custody order isn’t meeting your needs, or if you don’t have a custody order and need one—meet with one of Lazar Law’s experienced family law attorneys to discover solutions for your family law matter. Send us an email or call 512-477-1600 to schedule a consult.

**This article is not intended to provide medical advice. If you need medical advice about the COVID-19 vaccine, you should consult with a medical provider of your choosing.