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The Informed Parent

Who Makes Medical Decisions After The Divorce

by Peter W. Welty, M.D., F.A.A.P.
Published on Jun. 09, 2003
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The cold reality in today’s society is that divorce is a truism. This fact, we know, directly effects the children. Taking only one aspect of this monumental dishevel, let us look at the legality of the medical care now altered by the divorce.

There are certain concerns that arise regarding this medical care for the children. Who can legally consent for treatment from the pediatrician? Some of the following information was obtained from CAPSULES, a risk management publication for CAP, Inc. of Los Angeles, California.

It is important that the pediatrician know the custody arrangement of the child after his or her parents’ divorce. Physical custody means that the child lives with that parent and is under his or her primary supervision. However, physical custody does not always mean legal custody. Legal custody means that the parent has the authority to make important decisions on behalf of the child, especially in areas of education, religion, or healthcare. Only parents with legal custody can consent for medical treatment or authorize the release of medical records to third parties. Legal custody can be “sole” or “joint”, depending if one or both parents have legal custody.

It is an excellent idea for parents who have been divorced and who are coming to the pediatrician for the first time to have a copy of the court order relating to custody. That way custody issues can be well defined from the start.

If joint custody is in effect, either parent may consent for medical care and treatment. Although joint legal custody means that both parents have equal authority to consent, the court may require that both parents agree upon certain or all medical decisions made on behalf of the child. Your child’s doctor needs to be aware of that. The doctor’s front office also needs to be aware which of the parents may give consent or serve as the child’s contact. Court updates to the legal or physical arrangements should also be made available to your child’s doctor as soon as those decisions are made or changed.

If one of the parents has sole legal custody, that parent is the only decision-maker in matters relating to the child’s healthcare. The other parent may not give or withhold consent for the child’s treatment. However, under most circumstances, the non-custodial parent may be entitled to receive a copy of the child’s medical records. The pediatrician’s office, however, may choose to notify the custodial parent of the other parent’s request prior to releasing the records.

If both parents who have joint legal custody do not agree on a particular medical decision, and if the decision is not life threatening, the parents should come to an agreement themselves, and not bring the doctor in on the dispute. The doctor provides all of the information regarding the risks, benefits, and alternate options on the treatment in question. The parents should seek court intervention if they cannot agree. But there might be a significant delay in coming to a medical decision for the child, especially if there is a possible risk of danger or harm.

Divorce is a reality in our society today. Information regarding your child’s custody arrangement should be quickly relayed to the pediatrician, so that your child continues to receive uninterrupted and quality care in the best manner possible.




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