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:
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.