Family Law

Medication Disputes, Your Child and Custody Cases

By Kristina Otterstrom, Attorney
How to handle arguments about your child’s medical care.

What Types of Medical Issues Will a Custody Order Cover?

A typical custody order will address which parent pays for health insurance, how parents will split medical costs and bills, and whether one or both parents will have the final say on major medical decisions. If your child has an existing medical condition like asthma or a heart condition that requires a future surgery, you may want to plan ahead and address future costs and procedures. For example, your order could state that both parents agree to pursue a specific heart surgery for the child’s condition. This will eliminate the need for argument about whether the child needs surgery at a later date.

Most medical aspects of a custody order are open-ended, but give one parent (typically the custodial parent) the final decision-making power if parents can’t agree. Custody orders can be even more detailed setting forth:

  • circumstances that warrant taking the child to a doctor
  • providing a list of approved physicians, and
  • requiring parents to share and disclose the child’s medical records within seven days of any doctor visit.

What If My Custody Order Doesn’t Address Medical Issues?

You custody order may be silent on medical issues, but it should spell out your role in making medical choices for your child. In general, “legal custody” allows you to make medical decisions on your child’s behalf. Parents can share legal custody of their children (called “joint legal custody”) or just one parent can have legal custody (called “sole legal custody”). A parent with sole legal custody controls all decisions involving the child, including the child’s medical treatments.

Can I Request a Change in Custody Based on My Child’s Medical Needs?

When children suffer health issues because of one parent’s actions or inactions, it may be grounds for changing custody. In some cases, a court may even order a custody evaluation to assess each parent’s fitness for custody. For example, a parent may seek a custody modification on the grounds that other parent refuses to give a child their prescribed medicine. Or a parent to a child with a chronic medical condition may request a change in physical custody because of the parent’s proximity to top medical care. Generally, courts won’t change custody unless they see a significant change in circumstances. Some examples of a change in circumstances that may warrant an adjustment to custody include:

  • finding that a parent has neglected or abused a child
  • evidence that a parent has jeopardized the child’s health by neglecting the child’s medical needs
  • a recent diagnosis that the child suffers from a serious medical condition, and
  • the court’s termination of one parent’s rights since the last custody order was issued.

Ultimately, a court will assess a child’s best interests and each parent’s ability and willingness to meet that child’s needs.

Handling Your Child’s Medical Care in an Emergency

State law allows either parent to provide immediate medical care in an emergency situation. Even if you don’t have legal custody of your child, you still have the right to rush your child to the ER or call an ambulance in an extreme emergency. However, in emergency situations where you don’t have access to your child and the child’s other parent isn’t providing medical care, you may need a court to take action. An experienced family law attorney can help you review your options, which may including filing a temporary restraining order or emergency custody motion.

Alternatively, you may need to report the other parent’s conduct to the police or your state’s child welfare agency. An agency will need to conduct an investigation, which takes time you may not have in an emergency. As a parent, your child’s well being should be a top priority. Children are accorded special protections under the law, including getting them the help and treatment they need in an emergency. If you have specific questions, you should consult a local family law attorney for advice.

Questions for Your Attorney

  • I have sole legal custody, but my ex refuses to give our child her prescribed medications during visitation. This leads to health problems for my child and additional doctor visits. Are my ex’s actions enough to get my custody order changed?
  • I share joint legal and physical custody with my child’s other parent, but we can never agree on our child’s medical treatment. What happens then? Who gets to decide?
  • In negotiating a joint parenting agreement, should I push for sole authority to make medical decisions for our child?
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