A major part of any court decision regarding child custody is which parent is responsible for making medical decisions for the child or children. Often it can concern just run of the mill issues like the primary care provider or who decides if and what vaccinations the child or children will receive. Medical custody is a smaller part of the a greater custody award.
Key Takeaways
Physical Custody vs. Legal Custody
People tend to lump together “custody.” A lot of people think that if they have the child or children physically with them then they “have custody.” It is important to understand that there are really two types of custody in any child custody situation.
Physical “custody” is also referred to as physical placement. That means the child or children are physically with one parent at a certain time. As an example, one parent may have “primary physical custody” because the child or children reside with them in the home for 80% of the time. It is usually helpful to think of it as physical placement and avoid a misunderstanding of the custody rights actually involved.
Legal custody is different than physical placement. Just because the child or children are physically with one parent does not mean that the parent who physical has the children is entitled to call the shots during that physical placement time. Legal custody empowers the parent or parents to make decisions for the child or children that will affect them for an extended time. Examples of decisions a person with legal custody are where the child will attend school, what medical care the child received and who their provider is and their religious practices. Legal custody is usually joint, absent very specific circumstances or an agreement between the parents that is ratified by court order. Absent factors that would make joint legal custody dangerous to the child or impossible the presumption by the court is that the parents will share joint legal custody.
Joint Legal Custody
Understanding that joint legal custody is probably going to be the situation or is currently the situation, it’s important to understand how that affects medical decisions for the child or children.
Regular Medical Care
Regular medical care is certainly a joint decision between parents who hold joint legal custody of the child or children. Parents will be expected to communicate and agree on the child’s medical provider and what kind of regular care the child will receive.
Vaccination decisions-this has become a hot button issue in recent years, both with the claim that vaccinations are dangerous to children and the COVID-19 pandemic vaccination cases. The issue of vaccination should ideally be worked out between the parents but if the parents cannot get on the same page about the vaccinations then the court will have to become involved. Ideally there is already a custody order in place laying out the rights and responsibilities of each parent. Sometimes a parenting plan will discuss what is required in the even the parents reach an impasse when making a medical decision for the child or children and if that is the case, then the parents are expected to follow the instructions laid out in the parenting plan.
If the parenting plan is silent in the event of an impasse when it comes to vaccinating the child, the parents should appeal to the court for resolution. Neither parent should take any action in getting the child vaccinated without court intervention in these specific circumstances. If one parent chooses to vaccinate the child against the wishes of the other parent, when joint legal custody is in place, the offending parent may be setting themselves up for a custody battle and there will be a record in place of one parent both refusing to co-parent and being in contempt of a court order, which is what the disobeying parent would be.
The parenting plan or the court may order the parents to attend mediation. In the event that the parents cannot resolve the issues in mediation, the court will issue an order. To be clear, the court vastly prefers that the parents work out the issue of vaccination on their own.
If you think that there could be disagreement regarding vaccinations it would not be a bad idea to include impasse breaking instructions in the parenting plan if you in the middle of a divorce or custody battle.
Medication decisions- sometimes parents with joint legal custody cannot agree on appropriate long term treatment options for various conditions that require long term medication. Regardless of the reasons behind wanting or not wanting the child or children to be medicated the result is the same as for an impasse when it comes to vaccinations. Ideally there is a parenting plan in place that addresses what steps should be taken if the issue arises. IF there is not answer for the parents in the parenting plan, the court will be forced to intervene upon petition by one or both pf the parents. Ideally, the child or children will not be placed on medication until he court issues a decision allowing the child to be medicated.
Emergency Medical Care
The standard for most states is the best interest of the child. In light of the best interests standard, emergency medical decisions are usually exempt from joint legal custody analysis. What that means is if one parent has physical placement with the child and there is an accident that requires an immediate medical decision by that parent, it is extremely unlikely that they will receive any negative treatment for that decision by the court. The law understands that there may not be time to contact the other parent for a discussion (although the other parents should be notified as soon as possible). The bottom line here is the safety of the child comes first and an emergency situation is not the same as a vaccination or the decision to medicate the child.
What Happens If Parents Disagree on Medical Treatment?
If the parents cannot reach an agreement, then the court will have to get involved. It is important to remember that taking medical action that the other parent objects to can seriously affect custody down the road once the medical issues are resolved. Unless it is emergency medical treatment, the other parent who shares joint legal custody must be in agreement.
.avif)
.svg){kind=small}
