What happens when divorced parents disagree about medical decisions for their children?

Few decisions are more difficult than those regarding the health of our children. Our children rely on us to make choices to help ensure they grow to be healthy adults. There are times these decisions are easy, and others when they are difficult. Few times were more difficult than during the COVID-19 pandemic.

Everyone had questions about what was best during the pandemic. During the early months of 2020, parents were forced to make these decisions with little information of the potential impact of the disease. As time passed, questions shifted from whether or not to send children to daycare and school to whether or not to get children vaccinated. Some supported use of the vaccine, others did not. But what happens when two parents cannot agree? What happens when those parents are divorced?

Who gets to make medical care decisions for children when parents are divorced?

The answer will generally depend on state law and the divorce settlement agreement. Disputes regarding care during the pandemic were not uncommon. One example out of Pennsylvania that got national attention involved a mother who wanted her children vaccinated and a father who did not. State law in Pennsylvania generally requires parents with shared legal custody come to an agreement over medical decisions for their children. When unable to come to an agreement, the state often sends parents to mediation to attempt to resolve the matter. If that fails, the issue goes to court.

In these types of disputes, the judge often relies heavily on the opinion of pediatricians and the child’s past medical history. In this case, mediation was unsuccessful so the parents took the matter to court. Both presented evidence to support their side of the argument. This included a note from the children’s pediatrician which referred to the CDC’s guidance as well as the history of similar medical decisions and publications on both the benefits and risks of the vaccine. Upon review, the judge allowed the mother discretion to decide on the matter.

How are these decisions made in California?

California law is structured in a similar way when it comes to these types of disagreements, generally requiring parents with joint custody both have a say in medical decisions for their children. The law refers to this as joint legal custody. Physical custody, or the time the child spends with each parent, is separate. A parent may have sole physical custody but still need to discuss medical decisions with the other parent if they have joint legal custody.

Ideally, parents will have these discussions at home or in a neutral location. If in a neutral location, the parents will need to continue the conversation and reach a resolution before moving forward. If the disagreement occurs at the hospital or clinic, medical staff are generally trained to wait until the disagreement is resolved before moving forward with care. They may also require court documents before moving forward with treatment after the disagreement.

What steps can help reduce conflict during these disagreements?

Although you may disagree with the other parent, it is important not to speak poorly of that parent to the children. This is true for any disagreement. Other tips that can help include:

• Communicate. Keep the other parent informed of any health issues or conversations with physicians that relate to the child’s medical care.
• Prioritize. It is important to keep the main priority, the health of your child, in mind when navigating these conversations. Try to set aside frustrations with your ex and focus on what is best for your child.
• Delegate. There are times when compromise is not an option. It is generally wise to seek legal counsel to help advocate for your family’s interests if you need to push forward with a legal dispute due to a disagreement over medical care.

It is imperative that parents take the children’s medical welfare into account when drafting child custody agreements. Parents can better ensure their family’s interests are protected by seeking legal counsel during the divorce and in the event of any subsequent family law disputes.