Treatment for medical conditions often means making choices, including decisions made by parents for a child's treatment. When you're dealing with your child's medical issues, you may not want to add legal issues into the mix. When parents are divorced, making these choices can create legal problems and conflicts.

Know how to manage medical care issues for your child while avoiding conflicts with your ex-spouse and keeping your child healthy and safe.

Your Custody Order

Look to your custody order for the basics on who can make medical decisions for your child. Your custody order states what kind of custody you have, and may cover who makes medical decisions and pays for health insurance and the bills. In most states, custody issues are covered in a marital settlement or joint parenting agreement, which becomes part of the court's order in your case.

Custody orders can be very detailed, going beyond medical care and finances. State laws often allow parents flexibility in crafting custody terms. Parents may agree on when a child is to see a doctor, sharing and disclosing records and who makes the final decision on care. Working out the ground rules during the divorce or custody action can go a long way in avoiding conflicts in future.

No Help in the Custody Order?

When a custody order doesn't cover the specifics of who can make medical decisions and when, make decisions based on the type of your custody award. In general, "joint legal custody" means that both parents share the authority and responsibility for their child's medical care. "Sole legal custody" means only one parent controls decisions involving the child, including medical care.

Conflicts and Custody Changes

Your child's health issues can lead to changes in your custody or visitation arrangement. Parents may disagree on treatment, medications and giving needed care when a child is in their custody. For example, an ex-spouse might refuse to give prescribed medicine when the child is in that parent's care. That may lead a court to decide that a change in custody is needed

Courts decide custody and visitation issues based on the best interests of the child. A parent's failure to give a child needed medical attention is often the basis for changing custody

Changed Circumstances are Needed, too

Besides showing a change of custody is in the child's best interests, to change the current custody order, you also need to show there has been a significant change in circumstances.

Showing a significant change in circumstances may be easier when:

  • There's a finding by a welfare agency or court that a parent neglected or abused a child
  • A court has terminated the parental rights of a parent since the last custody order was issued

A court may also look at factors such as a newly-made diagnosis and a parent's training or background in health care. A family law attorney can tell you whether factors like these could make a difference in your case.

Quick Action for Emergency Situations

State laws provide for fast action when there's an emergency related to a child's care and custody. The aim is for a court to act quickly and protect your child's well-being. Your attorney can help you review your options, such as filing a petition for a temporary restraining order or some other emergency motion.

Other options include reporting a parent's conduct to the state agency for child welfare services. However, an agency is unlikely to second-guess a parent who is following a doctor's directions, even if you disagree with the doctor or the treatment. An agency investigation may take place, however, when a parent doesn't have the back up from a medical provider.

As parents, you both love your child dearly, and you both know that keeping your child healthy and safe is the number one priority. Keep that in mind, and when the time comes and your child needs medical care, you'll both be able to make the right decision.   

Questions for Your Attorney

  • I have sole legal custody, but my ex-spouse fails to give our child her prescriptions during visitation, and it means she's sicker and more doctor visits. Is this enough to get a change in the visitation order?
  • What happens when I can't agree with my spouse on our child's medical treatment when we have joint custody?
  • In negotiating my joint parenting agreement, should I push for sole authority to make medical decisions for our child?

Tagged as: Family Law, Child Custody, medication disputes, custody cases