Medicolegal Issues

Divorce, custody, and parental consent for psychiatric treatment

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Dear Dr. Mossman:

I treat children and adolescents in an acute inpatient setting. Sometimes a child of divorced parents—call him “Johnny”—is admitted to the hospital by one parent—for example the mother—but she doesn’t inform the father. Although the parents have joint custody, Mom doesn’t want me to contact Dad.

I tell Mom that I’d like to get clinical information and consent from Dad, but she refuses, saying, “This will make me look bad, and my ex-husband will try to take emergency custody of Johnny.” My hospital’s legal department says consent from both parents isn’t needed.

These scenarios always leave me feeling upset and confused. I’d appreciate clarification on how to handle these matters.—Submitted by “Dr. K”

Knowing the correct legal answer to a question often doesn’t supply the best clinical solution for your patient. Dr. K received a legally sound response from hospital administrators: a parent who has legal custody may authorize medical treatment for a minor child without first asking or informing the other parent. But Dr. K feels unsatisfied because the hospital didn’t provide what Dr. K sought: a clinically sound answer.

This article reviews custody arrangements and the legal rights they give divorced parents. Also, we will discuss the mother’s concerns and explain why—despite her fears—notifying and involving Johnny’s father can be important, even when it’s not legally required.

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Custody and urgent treatment

A minor—defined in most states as a person younger than age 18—legally cannot give consent for medical care except in limited circumstances, such as contraceptive care.1,2 When a minor undergoes psychiatric hospitalization, physicians usually must obtain consent from the minor’s legal custodian.

Married parents both have legal custody of their children. They also have equal rights to spend time with their children and make major decisions about their welfare, such as authorizing medical care. When parents divorce, these rights must be reassigned in a court-approved divorce decree. Table 1 explains some key terms used to describe custody arrangements after divorce.2,3

Several decades ago, children—especially those younger age 10—usually remained with their mothers, who received sole legal custody; fathers typically had visitation privileges.4 Now, however, most states’ statutes presume that divorced mothers and fathers will have joint legal custody.3

Joint legal custody lets both parents retain their individual legal authority to make decisions on behalf of minor children, although the children may spend most of their time in the physical custody of 1 parent. This means that when urgent medical care is needed—such as a psychiatric hospitalization—1 parent’s consent is sufficient legal authorization for treatment.1,2

What if a child’s parent claims to have legal custody, but the doctor isn’t sure? A doctor who in good faith relies on a parent’s statement can properly provide urgent treatment without delving into custody arrangements.2 In many states, noncustodial parents may authorize treatment in urgent situations—and even some nonurgent ones—if they happen to have physical control of the child when care is needed, such as during a visit.1

Table 1

Child custody: Key legal terms

TermRefers to
Custody arrangementThe specified times each parent will spend with a minor child and which parent(s) can make major decisions about a child’s welfare
Legal custodyA parent’s right to make major decisions about a child’s welfare, including medical care
VisitationThe child’s means of maintaining contact with a noncustodial parent
Physical custodyWho has physical possession of the child at a particular time, such as during visitation
Sole legal custodyA custody arrangement in which only one parent retains the right to make major decisions for the child
Joint legal custodyA custody arrangement in which both parents retain the right to make major decisions affecting the child
Modification of custodyA legal process in which a court changes a previous custody order
Source: Adapted from references 2,3

Nonurgent treatment

After receiving urgent treatment, psychiatric patients typically need continuing, nonurgent care. Dr. K’s inquiry may be anticipating this scenario. In general, parents with joint custody have an equal right to authorize nonurgent care for their children, and Johnny’s treatment could proceed with only Mom’s consent.1 However, if Dr. K knows or has reason to think that Johnny’s father would refuse to give consent for ongoing, nonurgent psychiatric care, providing treatment over the father’s objection may be legally questionable. Under some joint legal custody agreements, both parents need to give consent for medical care and receive clinical information about their children.2

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