Medical Decisions for Children

In a recent custody dispute before the New Jersey Family Court, the trial judge decided that when divorced parents with joint custody cannot agree on a course of medical treatment for their child, the court may appoint one of them the “temporary medical custodian” with the authority to make important health decisions for the child. M.T. v. D.T. (2016).

The parents in this case divorced in 2015 after 23 years of a marriage that produced three children. Under the terms of their divorce, the parents agreed to joint and equal custody, with no set primary residence for the children, and to advise each other of any health or medical issues affecting the children.

When their 16-year-old son injured his elbow, the father consulted a surgeon and scheduled an appointment for non-emergent surgery without consulting the mother. Ten days before the surgery, the boy’s mother filed an emergent application with the court to seek a second opinion about the procedure. The father alleged before the court that since the divorce, the son had spent most of his time living with him, and that he had seen to all his medical appointments.

The court ordered the divorced parents to take the time to come to an agreement regarding the medical treatment for their son. They sought a second opinion, but the father agreed with doctor number one and the mother agreed with doctor number two, resulting in an impasse. The father then filed his own emergent application asking the court to grant him full custody of the child and the right to make medical decisions.

After determining that both surgical approaches were medically acceptable and reasonable, the court considered the statute, which provides three options in custody disputes:

1. Joint custody, which is favored by public policy.
2. Sole custody with parenting time rights for the noncustodial parent, which would need to be determined.
3. Any other custody arrangement that suits the best interests of the child.

The court said that, “in cases of separation and divorce, a child’s needs are greater than that of either parent under [the court’s supervisory] jurisdiction. When presented with a choice between parents’ rights and children’s rights, the choice is and must be the children’s welfare and best interests.”

Ultimately, the court decided under option three to preserve joint custody, but appointed the father as the temporary medical custodian for this surgical event, because the child spent most of his time with his father and the father would be primarily responsible to care for the boy during his recovery period. The court made it clear that as medical custodian, the father had to keep the mother informed about the treatment and all appointments for the child, and provide notice of any surgery by email at least 10 days in advance.

Some legal commentators suggest the parties would have benefited from including an Alternative Dispute Resolution (ADR) clause in their governing documents, which direct how to resolve disputes over issues such as their child’s health care or education.  Such agreements are often included in settlement agreements for divorcing couples who find it difficult to communicate, but they are potentially useful in divorce matters of all description.  ADR methods include mediation, binding arbitration, Collaborative Law, consultation with experts, and other models that require parties to attempt an out of court resolution, except in an emergency.

An experienced New Jersey custody lawyer can help you navigate these complex waters and come up with the best possible outcome for your children and you. Call the divorce and family lawyers at Hanan M. Isaacs, P. C., at 609-683-7400, or contact us online, to arrange for a near-term and reduced fee initial consultation at our Central Jersey law offices in Kingston, NJ.  We will listen to your facts, explain the law, and help your children and you create a pathway to custodial balance and social justice. Call today.  You will be glad you did.