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NV Supreme Court allows father to vaccinate son for COVID-19, despite mother’s opposition

The high court ruled that the vaccine is in the child’s best interest and set new criteria for district courts to consider in similar cases.
Eric Neugeboren
Eric Neugeboren

A Nevada father can seek the COVID-19 vaccination for his child following a ruling from the Nevada Supreme Court, despite the boy’s mother arguing against the shot.

Last week’s unanimous ruling from the high court upheld a lower court’s finding that the vaccine is in the child’s best interest — a legal standard at question because the parents are divorced and share custody of the child but disagreed over the vaccination. It rebuked the mother’s argument that the court should instead determine whether the vaccine is “medically necessary” for her son.

Nevada district courts have the authority to “break the tie” in situations where parents with joint custody disagree over a medical decision for their children. The high court’s ruling set new standards for the lower courts to consider when determining whether a medical action is in a child’s best interest.

“Because district courts lack guidance on how to apply the best-interest-of-the-child standard in this context, we adopt nonexhaustive factors for district courts to consider in making such determinations: (1) the seriousness of the harm the child is suffering or the substantial likelihood that the child will suffer serious harm; (2) the evaluation or recommendation by a medical professional; (3) the risks involved in medically treating the child; and (4) if the child is of a sufficient age and capacity to form an intelligent preference, the expressed preference of the child,” said the opinion from Chief Justice Lidia Stiglich.

The ruling caps off a nearly two-year legal battle between Scott Kelley and Brooke Westlake, who share joint custody of their two sons, now aged 13 and 4. Kelley is a former trustee of the Washoe County School District who resigned in 2020, and Westlake is a cannabis executive and former school board candidate who has fought to remove certain school protections for transgender students.

In a Tuesday email responding to The Nevada Independent’s request for comment, Sigal Chattah, an attorney and Nevada Republican National Committeewoman, declined to comment on behalf of Westlake, whom she referred to as her client, even though Chattah was not listed as Westlake’s lawyer in court documents. In a social media post after the ruling, Chattah said “Nobody understands the massive ramifications of this decision yet. Soon they will.”

In a statement, Kelley said he was “pleased” with the ruling and hopes “our family can put this legal fight behind us.”

The dispute began when Kelley wanted to vaccinate his children in late 2021 so they could travel abroad. Westlake claimed the vaccine could be a detriment to the childrens’ health.

A Washoe County family court judge ruled last year that Kelley could have sole control over his older son’s vaccination (the younger son was not yet eligible for the vaccine under federal guidelines). The judge said vaccination was in the child’s best interest based on guidance from a pediatrician and recommendations from leading health organizations.

Westlake appealed to the state Supreme Court, arguing without evidence the vaccine could affect her child’s behavior and fertility and asking the court to determine whether it was a “medically necessary” action. 

The Supreme Court’s order rejected that argument and cited other states’ legal opinions, including Arizona, that rely on the “best interest of the child” standard in similar custody disputes.

“Other than expressing her personal preference against vaccination, Brooke did not provide evidence that vaccination against COVID-19 was not in [her son’s] best interest,” Stiglich’s opinion stated. “Basing a decision on what is ‘medically necessary’ alone … could infringe a parent's rights to control by requiring a higher showing — that something is or is not ‘medically necessary.’”


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