When Parents Disagree on Medical Care for Their Children

Parents have a legal obligation to take care of their children including providing them with shelter, food and medical care. After separation or divorce, a court or the parents themselves will make a determination as to which parent the child will live with (child custody). Oftentimes, the child will live with one parent, who will thus have physical custody, and the other parent will be granted parenting time (visiting rights).  Most frequently, court and parents decide that legal custody is to be shared by both parents (joint legal custody).

Generally, joint legal custody is defined as the parents’ shared right to determine how to raise a child, with specific consideration to day-to-day activities. Parents are expected to make decisions together, without the interference of a court. Those decisions include making educational and medical decisions, such as deciding whether to pursue a particular medical treatment or procedure.

This works if both parents share common child rearing goals, religious, philosophical, cultural and financial ideas, and are able to parent collaboratively. However, parents must be able to effectively communicate and handle making joint decisions involving a child. When parents are unable to communicate with each other and have different ideas about raising children, often even a minor dispute can turn into a major disagreement.

Historically, many courts have upheld the right of parents to refuse medical treatment for their children, recognizing that fit parents are in the best position to make those difficult decisions.* As such, whenever a parent’s refusal is challenged it is usually not by a government entity but rather by the other parent who may have different religious, philosophical, cultural and financial ideas as to proper child rearing.

If parents cannot reach a mutual decision involving the day-to-day rearing of a child or making a medical decision, a court may consider a few alternatives:

  • Deferring to a neutral third-party, agreed upon by both parties, which might be a stipulation in the custody agreement
  • Court ordered mediation
  • Litigation, if both previous alternatives fail a court can make a decision for parents.

Courts generally do not want to be involved with the decisions pertaining to raising one’s children. However, once involved, courts will always consider the best interest of the child rather than religious, philosophical, cultural and financial ideas of a parent.

Here are some of the most frequently disputed medical decisions:

Vaccinations

The decision to vaccinate is filled with controversy. For many parents, it is the first medical choice parents make on behalf of their child. While vaccinations undoubtedly carry some benefits, there are those who believe that there are also risks associated with routine vaccinations that can lead to disability and even death.

While New Jersey has mandatory vaccination regulations, a child can attend public and most private schools with select or no vaccines if the parent or guardian provides a valid medical or religious exemption letter to the school administrator. Private and religiously affiliated schools may or may not accept religious vaccine exemptions, however. NJ does not currently allow parents to use a conscientious or philosophical vaccine exemption.

Dental care and orthodontics

Many practitioners of non-interventionist religious groups, such as Christian Scientists, do not believe in routine dental care or aesthetic orthodontics. For many others, decision to forego dental care or orthodontic treatment is based predominantly on parent’s financial situation. When someone struggles to put food on the family’s table, braces for the children are considered superfluous.  However, this can become trickier when parents have money, but one parent simply does not consider straight teeth a necessity.

Emergency care and hospitalization

Even most divisive philosophical and cultural beliefs often require compromise in times of emergency. If a child requires urgent care and is in the physical care of one parent, the second legal custodial parent might not even be informed prior to a child’s hospitalization or medical procedure.

If you and your former spouse/partner disagree on the practice of conventional medicine, a family law attorney or mediator might be able to assist you in reaching a compromise regarding your child’s medical care. After all, even a compromise might be better than going to court and having a judge make a decision for you.

* But while adult patients can refuse treatments on grounds of faith, the religious convictions of a child—or of their parents—are not generally an acceptable legal defense against withholding lifesaving treatment.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: www.teperlaw.com 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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2 Responses to When Parents Disagree on Medical Care for Their Children

  1. Phillip Linford says:

    Me ex- wife and I have joint legal custody, but I have full physical custody. She does not agree with western medicine. I put my daughter on a medication after some blood testing and an MRI to reduce a chemical imbalance regarding Prolactin levels. My ex says she has a right to question that decision and to take her to a holistic practitioner (not necessarily a doctor). How does that work? What is the best way to approach this? Thanks!

    • teperlaw says:

      Your ex-wife can take your daughter to a holistic practitioner for an evaluation or for a second opinion, however, it may not be advisable (or it may even be dangerous) to change your daughter’s current treatment. You may want to be present for that visit to make sure that practitioner knows not to start any new treatment without your consent. You might want to discuss this with your ex so she understands your resistance is not stemming from spite but rather from wanting what is best for your child. Talk to your daughter’s doctor to learn if your daughter is at risk should her current treatment be stopped or if she is prescribed holistic medicine of some sort. If you feel your child’s health/well-being/life might be in danger, you can always file a motion in court and seek order specifying as to which parent is responsible for child’s medical care and what kind of treatment she should be receiving, or who should be paying for it etc. Document your communications so if you do have to go through court, you have some records. Without knowing more about your case, I cannot give you better advice. Naturally, if there is an imminent danger to your daughter, consider filing an emergency motion. Please note that I am based in New Jersey, so you may want to consult with someone in your specific locality who’s familiar with your local courts.

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