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Jan 7, 2017

Legal Corner: When Divorced Parents Disagree on Medical Care for Their Children

Parents with joint legal custody share the right to determine how to raise their children, with specific considerations being given to the day-to-day activities. Generally, in a divorce, both parents share legal custody of the child, while physical custody is given solely to one parent with the other parent being assigned parenting time.

 Image courtesy of hin255 at FreeDigitalPhotos.net
Legal custody is where a parents’ power to choose their child’s medical care stems from.  In the best of cases, both parents will either have common child rearing styles and goals or have personality traits that naturally sync with each other.  In those situations, maybe dad defers medical decisions to mom because she is a doctor, or mom delegates certain disciplinary actions to dad because he is better at the follow through, for example.  The parenting styles that worked in their marriage, sometimes continue to work after the marriage ends.  However, the reality is that many divorced parents will face some level of conflict in parenting decisions from time to time.

Most child-rearing disagreements that co-parents face do not rise to the level of resulting in court intervention and can he handled “in-house” within the family.  The potential for court intervention, however, arises when a parent worries that an impending choice may result in grave consequences to the child – such as parents having strong reservations regarding the safety of vaccinations.  Being concerned about the physical safety easily results in hard stances being taken by both sides ad can quickly escalate to neither party is willing to budge.

So, what happens when parents cannot agree on a medical decision?  When parents simply cannot reach a collaborative decision pertaining to medical care and court intervention is sought, a court may consider a few alternatives:

·     Court ordered mediation.  Mediation is a process where a third and neutral party facilitates a negotiation between the parents.  Mediation results in a decision reached for and agreed upon mutually by the parents.  The mediators sole job is to promote discussion and negotiation.
·     Court ordered arbitration.  Arbitration is similar to mediation in that it involves a third part and is handled out of the courtroom but it comes with one distinct difference: The arbitrator (not the parties) is the one who decides the outcome.  The arbitrator’s decision is legally binding and both parties have no choice but to adhere to the final decision.
·     Litigation.  This is the legal process by which the decision is put in the judge's hands.  The court will make the final decision after listening to both sides of the argument.  This option is generally one of last resort.
·     Third party decision maker.  This option is one that would have been put in place at the time of divorce in the custody agreement.  A provision in the custody agreement would name a third party to be a “tie-breaker,” so to speak.  The third party would be presented with both points of view, data supporting each, and subsequently makes a legally binding decision on the issue.

If former spouses adamantly disagree on the practice of conventional (or unconventional) medical treatment for the child, the best course of action is to agree on the quickest course of action.  Reaching a timely decision is crucial for the well-being of the child and for the well-being of the co-parenting relationship. Reaching out to a legal resource, such as a family lawyer or mediator, might be the best assistance in reaching a compromise.  After all, a compromise in which you take an active role in the decision process may be better than going to court and having a judge make the decision for you.

Metro Detroit Mommy Blogger:

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