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I am divorced. Who makes medical decisions for my child?

It is not unusual for married parents to disagree regarding decisions affecting the lives of their children, much less divorced or unmarried parents.  After school activities, sports, choice of day care, and even whether their child can dye their hair the color blue are just some examples.  The divisiveness can reach an unmanageable level when the parents are divorced or no longer together. While a child probably will not experience long lasting repercussions if they cannot dye their hair, there is one area where a parental disagreement can have a serious effect: medical treatment. It is inevitable and unfortunate, but, children get hurt or sick and need to receive medical treatment. A disagreement on the approach parents take to certain treatment of their child could permanently alter their lives.

There are actually two important categories of medical treatment when considering the topic with separated parents: emergency and non-emergency. For good reason, there are different considerations that medical professionals have to ponder when a child needs emergency medical treatment. When time is of the essence, a doctor should obviously not have to wait for approval from both parents (or in many cases even one parent) to conduct emergency medical treatment, considering the parents may be difficult to reach or extraordinarily defiant of their ex-partner. However, as you will read more about below, this has not been the case for non-emergency medical treatment, until recently.

Fortunately, in most instances, a Parenting Plan which is now required in child custody cases, should cover such issues as parental responsibility for non- emergency medical decisions and cost sharing. If so, you just follow the directives as set out in the Plan which can allow either to make the decision individually or only one parent, depending on the ruling previously entered by the court.

However, if you do not have a Parenting Plan for a child (which can occur for a variety of reason) Florida law will take over.  Throughout the state’s history, it has been customary for both parents to be required to consent to non-emergency medical treatment for their child. This is based on the idea that, barring a prior award by a court of medical decision making to only one parent, the decision should be just like every other decision parents make for their child—a shared one.

However, last year a Florida court, albeit not in a case about child custody, came to a different conclusion by finding one parent could consent to a non-emergency medical treatment. The rational was quite simple: medical professionals should not be put in the “untenable” position of being forced to act as the mediator or referee between the two parents regarding a dispute over a procedure. Thus, there is now a foundation for one parent to consent to a non-emergency medical treatment. Now, does that mean all medical professionals will proceed with a procedure without consent from both parents? No, hospitals and medical offices have their own procedures that they follow. Yet this case does signal a change and a trend towards a more singular consent system. As a result, the area of consent for medical treatment post-divorce or for unmarried parents is currently murky.  If you need assistance in this area, you should hire an experienced family law attorney.

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