Who Makes Healthcare Decisions for Children of Divorced Parents?

When there is a divorce involving children, the parents often have vehement disagreements about various parenting issues. One of the most common areas in which parents may not see eye to eye is with the health care decisions that must be made. Before the divorce is finalized, they might be able to agree on whose health insurance policy the children will be under, but when a specific issue arises, they often have different ideas about how it should be addressed.

Sole vs. Joint Custody in Virginia

The first consideration when there is a disagreement about a health care decision on behalf of the child is which parent has custody. There are two different types of child custody; physical custody and legal custody. Physical custody addresses which parent the child lives with primarily, and how often the non-custodial parent is able to visit the child. Legal custody deals with the ability of parents to make major decisions that affect the child. Healthcare decisions would fall into the area of legal custody, because it would be in the “major decision” category.

When One of the Parents Has Sole Legal Custody

If one of the parents has sole legal custody, then they are able to make decisions about routine medical care (e.g., physicals, dental checkups, eye tests, etc.) without consulting the other parent. In addition, either parent can make a decision about emergency medical care while the child is with them. However, if this is the parent who does not have sole legal custody, he or she must inform the other parent about the medical treatment the child received as soon as it is reasonably possible.

When Parents have Joint Legal Custody

It is becoming increasingly common in Virginia and throughout the country for parents to share legal custody of their children. The default position of the family courts is that it is generally in the best interests of the children for both parents to be involved in their lives. So, even in situations where one parent has primary physical custody of the child, they often have joint legal custody; giving them equal decision-making authority over areas such as education, religious upbringing, extra-curricular activities, and health care. 

In some cases, one parent may be given final decision-making authority over certain areas, with other areas going to the other parent. For example, if religious upbringing and education are more important to the mother and the child is on the father’s health insurance policy, the mother may decide which religion the children will be brought up and which school they will go to, while the father may to have decision-making authority for medical treatment.

In many joint custody arrangements, however, the areas of decision-making are not as well-defined, and it is expected that the parents will consult each other and work cooperatively and in keeping with the child’s best interest. And while they might start out with this intention, specific situations may come up in which a major disagreement may arise.

When the Parents Can’t Agree on Medical Treatment

Disagreements over healthcare decisions can lead to a standoff between two parents with the equal decision-making authority, putting professionals who are just trying to do their jobs in the middle of a parenting dispute. For example, the child injures his arm playing football. The mother wants the child to have surgery, but the father wants to pursue other treatments. Both have consulted equally-competent medical professionals who support their point of view.

How does this situation get resolved? Most likely, in one of two ways; the parents either work together to reach a solution both of them can live with, or one of the parents (probably the mother in this case) petitions the court to obtain full legal custody so she can go forward with the surgery. When the court gets involved, the results are unpredictable, and they depend largely on the viewpoint of the judge presiding over the case and the strength of the arguments presented by both sides.

Involved in a Child Custody Dispute in Virginia? Contact an Experienced Family Law Attorney

Parents with joint legal custody should be committed to working together to decide important parenting matters (based on their children’s best interests). And before going back to court, they should exhaust all other avenues and try to work out any disputes on their own. That said, there are times when there is little choice but to petition the court for a modification of the current custody arrangement. When that situation arises, you need strong legal counsel in your corner advocating forcefully for your rights and interests, and for the best interests of your child.  To schedule an initial consultation with the seasoned family law attorneys at Olmstead & Olmstead, call us today at 703-361-1555. You may also message us through our web contact form or visit our Manassas, VA office in person at your convenience.