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Making Medical Decisions for Your Minor Child After a Divorce

Posted by Vincent C. DeLuca | Jun 09, 2014 | 0 Comments

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The specifics about whether one parent or both parents can make medical decisions regarding a child's medical care are included in the divorce agreement.  Also relevant in the divorce agreement are when the parent can make these medical decisions for the minor child.
If you are already divorced, you may find some of these key words in your divorce agreement to better help you understand your individual medical responsibility for your child or children:

  • Emergency medical decisions can involve the life or death of the child and include emergency room visits to a hospital for a broken bone, injury or hospitalization.
  • Non-emergency medical decisions are visits by the child to a physician, specialist, or dentist that includes well visits and non-emergency sick visits (e.g. flu, ear infection).
  • The Custodial parent is the same as the primary residential parent.
  • Access to medical information means each parent can obtain from a doctor, specialist, or dentist any medical reports and information concerning the child.
  • Consultation between the parents involves the parents consulting each other about the child's health.  In New Jersey, the statute N.J.S.A. 2A:34-23 sets forth a requirement for one parent to contact the other parent about the child's non-emergency medical care.
  • Legal custody that is awarded to the parent is either sole legal custody or joint legal custody.

Legal custody means that the parent can make important decisions including medical decisions about the child's health.  The New Jersey child custody statute is N.J.S.A. 9:2-4.
Only one parent is awarded sole legal custody, so that this parent can make major medical decisions about the child's health without consulting the other parent.  The parent withsole legal custody does not have to consult the other parent about non-emergency doctor visits.The parent without sole custody can make emergency medical decisionsabout the child only when this responsibility is included in the divorce agreement.  The parent without sole custody is obligated to tell the other parent about emergency medical decisionsabout the child.  In New Jersey, only approximately 5% of divorces result in sole legal custody by one parent.
Joint legal custody means that both parents can make medical decisions regarding the child's medical care.  The custodial parent who is with the child that day makes emergency medical decision.   For a non-emergency medical appointment, both parents will consult each other.  The custodial parent will discuss the results of the doctor's appointment with the other parent as soon as possible.  In New Jersey, approximately 95% of divorces result in joint legal custody.
For an uncontested divorce, the divorce agreement is the Judgment of Divorce and the attached mediated Property Settlement Agreement (PSA) includes a custody order.  The custody section in the PSA gives details on the custody award (whether sole legal custody or joint legal custody), visitation, access to medical information and consultation between the parents.  The PSA is also called a Marital Settlement Agreement (MSA).
The New Jersey divorce laws allow the parents to have some variation in the custody arrangements. For instance, in a joint legal custody the parents may choose to give one parent authority on health decisions, but both parents participate in all other major decisions, like education.

Conflicts Between Parents About the Child's Medical Care

The parents may not agree on all medical care for the child, especially certain medications, vaccinations, surgeries, and alternative treatments.  For example, in a joint custody case:

  • One parent gives the child Adderall medicine for Attention Deficit Disorder, the other parent consults an alternative doctor who wants to only use herbal treatment and change the child's diet.
  • One parent wants the child to get the MMR vaccine, the other parent is against the vaccine due to the possible sides effects.
  • One parent wants the child to get surgery after a fall as a physician recommended, the other parent consulted a physician who said the surgery was unnecessary.

If these disputes on medical decisions are unresolved between the parents, then the court can appoint a guardian ad litem (law guardian) to tell the judge what's in the best interest of the minor child.  Since each divorce case is fact specific, the outcome may change the medical decisions concerning the child and/or may even change the parent's custody arrangement in the divorce.

Contact Villani & DeLuca About Making Medical Decisions for Your Child

The attorneys at Villani & DeLuca are experienced child custody lawyers, knowledgeable about mediating the parent's rights in a NJ divorce.  We understand the New Jersey laws allowing the parent to make medical decisions for the child.  Contact Villani & DeLuca to speak to a NJ divorce attorney at (732) 709-7757 for a free initial consultation.

About the Author

Vincent C. DeLuca

Vincent C. DeLuca, a partner of the firm, devotes the entirety of his practice to family law. Vince is a trained divorce mediator and collaborative divorce attorney. Vince is certified by the Supreme Court of New Jersey as a matrimonial law attorney. Less than .002% of all practicing attorneys in...


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