Who Makes Medical Decisions for a Child After Divorce?

When you and your child's other parent split up, one of the most important issues you'll have to address is who will make medical decisions for your child or children. Here's what you need to know about how custody orders affect medical decision-making power and what happens when parents disagree about medical treatment.

Child Custody and Medical Decisions

State laws may use different terms, but there are two basic types of custody:

• "Physical custody" identifies which parent will have the children most of their time after the divorce.
• "Legal custody" identifies which parent will be responsible for making important decisions about the children's lives, including about medical care.

If one parent has sole legal custody, that parent may make decisions about the child's medical care without getting approval from the other parent (or the court). But when the parents share joint legal custody, neither of them may make these decisions without the other's permission. Unless the parents are in such conflict that they can't agree about anything, or one of them isn't able make sound decisions, judges generally prefer to award joint legal custody. That way, children have the benefit of both parents' involvement in their lives.

Parents may agree on how they'll handle legal and physical custody. If they can't reach an agreement, a judge will issue custody orders based on what's in the "best interests of the child." Sometimes, judges may award joint legal custody while splitting up the areas of decision-making responsibility between the parents. For instance, one parent may have the right to decide about the child's medical care and education, while the other parent will make decisions about the child's religious upbringing.

What Happens When Divorced Parents Disagree About a Child's Medical Treatment?

Even if you don't have legal custody of your child, you might still be able to fight for what you believe is best if the other parent refuses to allow a medication, surgery, or other medical procedure that the child needs. You would have to go back to court and request a change in the current custody order (more on that below).

If you and the other parent share legal custody but can't agree about some aspect of the child's medical care, you'll need to go back to court to ask a judge resolve the dispute. If the judge agrees that the issue is important, both parents may present evidence at a hearing. Typically, the judge will give a lot of weight to the evaluations and opinions of the child's pediatrician. After hearing the evidence, the judge might require a parent to cancel or schedule a medical procedure. In extreme cases—especially if the parents keep returning to court with disagreements about medical issues—a judge might modify their legal custody arrangements.

Which Parent Can Decide on a Child's Vaccinations?

Legal disputes between co-parents over whether to vaccinate children are nothing new. But those disagreements became especially acute with the spread of misinformation on social media about the safety of COVID-19 vaccines.

As with all other disputes over important decisions about their children's upbringing, parents must look to their parenting agreement or custody order. In most circumstances, a parent who has sole legal custody of the children has the power to decide whether the children will receive vaccines, and, if so, which ones and when the children will receive them.

It's a more difficult call when parents share legal custody. Before taking any action, parents should review the custody order or agreement to see if there is any specific mention of vaccines. In most cases, any specific mention will govern the matter, and the parents must follow it.

If the custody order is silent on the topic of vaccination but gives both parents equal rights to make medical decisions, the best course of action is for the parents to try mediation or ask a judge to decide the matter. After hearing the parents' evidence, the judge will make a decision based on an assessment of what is in the child's best interests.

What to Do If You Don't Have a Custody Order Yet

If you're beginning your divorce or custody negotiations, and you know that you and your co-parent have a difference of opinion on vaccines or other medical procedures, you'll need to address these issues. Even if the two of your have agreed on how to handle medical issues in the past, it's still wise to discuss them again in the context of creating a custody agreement.

To avoid uncertainty and future disagreement, you'll want your custody order to be as specific as possible.

Which Parent Makes Emergency Medical Decisions?

When your child's health is in jeopardy because of a true emergency, it's in your child's best interests to take immediate action—regardless of your legal custody status. If the parent who has sole or shared legal custody isn't immediately reachable, you are within your rights to take reasonable measures to deal with the emergency.

For example, say your child is taken to the hospital's emergency room after being seriously injured in a car accident, and the doctor tells you the child needs immediate surgery. You generally may give permission for the surgery as long as you believe it's in the child's best interests. But you should inform the other parent as soon as possible.

Here again, the specifics in your custody order may dictate your actions. For instance, your order may allow either parent to authorize emergency medical care when the child is in their care. But check to make sure that you aren't required to confer with the other parent first if there's time to do that.

What If the Other Parent Isn't Making the Right Decisions?

Custody orders aren't necessarily set in stone. But state laws on child custody often have strict requirements for requests to change (modify) custody. In most states, you'll have to prove that there has been a significant change in circumstances since the existing orders were issued, and that the modification you're seeking would be in the child's best interests.

Here's how this might work when parents disagree about a child's medical care. Say that when you divorced, your co-parent was communicating well, willing to listen to medical experts, and focused on the child's well-being. Lately, though, your co-parent has started getting medical advice from conspiracy theorists and refuses to listen to your child's pediatrician's recommendations. The drastic shift in parenting style might constitute a significant change in circumstances, and you could certainly argue that it would be in the best interests of your child to limit your co-parent's medical decision-making power.

And if you meet the threshold requirements for consideration of a modification request, the judge might order a child custody evaluation before hearing all the evidence and deciding what's best for the child.

Be forewarned: Legal disputes over medical care and modification requests can be difficult to navigate without a lawyer's help. An experienced family law attorney can help you gather the right kind of evidence you'll need to convince a judge that what you're fighting for will be best for your child.