“My ex won’t let my child get vaccinated, what should I do?”
“What do I do if my child’s mother won’t allow the ADHD medication?”
“My child needs surgery, but my child’s father thinks the risk is too great?”
These are all health-related questions that parents often disagree on with regard to their child’s medical care. Making such decisions can be a hot button issue for many parents, often leading to a negative impact on the child. Even though both parents may believe their stance is what is best for the child, disagreements over a child’s healthcare—whether routine vaccinations, surgeries, or mental health treatment—can be deeply emotional and legally complex with lasting consequences.
Understanding Legal Custody: Who is the decision up to?
In North Carolina, legal custody refers to the right to make major welfare decisions for a child, including those related to medical care. If parents share joint legal custody, both must be involved in making these welfare decisions. When one parent has sole legal custody, they have the final say—though the other parent can still raise concerns with the court.
Steps to Take When You Disagree
- Review Your Custody Order
The starting point is to read your custody order carefully. It should specify whether one or both parents have final decision-making authority over medical issues. If the order lacks such clarity or if no custody order exists, it may be time to involve a family law attorney to assist you in getting one.
- Communicate and Document
Try to discuss the matter calmly and share information – such as doctors’ recommendations or test results. Keep records of your communications – including emails, texts, and notes from conversations – in case the dispute escalates. Communication is key. As parents, you know your child better than any judge. Though it is difficult, attempt to hear each other out and put your child’s best interest first. It is better to try to come to a decision together, rather than put your child’s health in the hands of a stranger.
- Seek Mediation
Many custody orders require mediation before going to court; however, you can attend mediation even outside of any court order. Mediation allows both parents to present their perspectives. With the help of a neutral third-party mediator, these parties are often able to resolve any conflicts and disputes faster than litigation.
- Ask the Court to Decide
If you cannot agree, you can file a claim with the court. The judge will then have the authority and jurisdiction to determine what is in the child’s best interest, considering medical evidence, expert testimony, and the child’s needs. This may result in a more defined path of decision making for both parents, or the Judge may choose one parent to have final decision-making authority over medical decisions.
Seek Counsel
Medical decisions can have lifelong consequences for a child. If you are facing a disagreement, do not act unilaterally without understanding your legal rights and obligations. Speaking with a family law attorney early can help protect both your custodial rights and your child’s well-being.
FAQs
- What is the difference between legal custody and physical custody?
Legal custody determines who can make major welfare decisions for the child, such as medical care, education, and religion. Physical custody is about where the child resides and day-to-day care. You can have joint physical custody but sole legal custody—or vice versa.
- Can I make a medical decision for my child without the other parent’s consent?
If you have sole legal custody, you can make major medical decisions on your own. If you share joint legal custody, you generally must agree before moving forward with significant treatments or procedures. Acting alone could violate your custody order or put your custody rights in jeopardy.
- What happens if we cannot agree on a treatment plan?
If discussions and mediation fail, you can ask the court to decide who has final decision-making authority over medical decisions or possibly involve a Parenting Coordinator. A judge will weigh what is in the child’s best interest – considering expert medical opinions, the child’s health needs, and each parent’s ability to make informed choices.
- Will the court consider my child’s opinion?
Possibly, though not guaranteed. In North Carolina, a court may consider a mature child’s preferences if the child presents reliable testimony and perspective. However, the judge generally prefers that an attorney, such as a Best Interests Attorney, speak on the child’s behalf if possible. Regardless of the testimony and evidence though, a Judge will still make the final determination based on the Judge’s perspective of the child’s best interest.
- Do I need a lawyer for this type of dispute?
While you can technically represent yourself, custody-related medical disputes can be complex and emotional. An experienced family law attorney can help you navigate the process, present evidence effectively, and protect your custodial rights.
If you or somebody you know wants to learn more about child custody and legal custody, our team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
My journey to be a family law attorney began before I was even born. As a child of surrogacy, legal minds were already sorting through the details of my existence before anyone knew I too would become an attorney helping families. I now have wonderful relationships with my parents, as well as my birth mother, and I am grateful to the attorneys who made it all happen. I have thoroughly enjoyed this meaningful work and continue to be inspired and motivated by relationships with clients, understanding their stories, and helping them to assert their rights. I am eager to continue this advocacy and am ready and willing to work with you on any of your family law needs.
