Do Both Parents Have to Consent to Medical Treatment for their Child?
When couples divorce or separate and children are involved, figuring out how to care for them is a big task. Parents want to do what is best for their child, but to do so in concert with an ex-spouse is not an easy proposition. Assuming both parents share responsibility over decisions related to childrearing, such as which school a child should attend or which doctor the child will see, most of these decisions are made with the cooperation of both parents by keeping what is the best for the child at the forefront of this effort. Considering that the default in Florida is to award parents joint legal and physical custody of children, this need for cooperation is often required. One area, in particular, that is especially prone to disagreement between parents is medical care. These disagreements can be based on religious differences, opposition to Western-based medicine systems, or a whole host of other equally divisive factors. The issue that matters in these situations is who can consent to the child’s medical treatment, and is the consent of both parents necessary. For the first time, a Florida appeals court addressed this very issue when it had to decide if both parents had to sign off on adenoid and ear-tube surgery. The court ruled that only one parent, as long as that parent has legal authority, is sufficient for consent to medical procedures for the child. The court wants to avoid requiring doctors to referee these kinds of disputes, which could easily cripple their ability to provide appropriate treatment.
Parents and Other Adults
As stated above, Florida courts start from the premise that both parents should share responsibility for major life decisions related to the child, and this position will only be deviated from if the court determines that the involvement of one parent would be detrimental to the child. This means in practice that even if a single parent holds exclusive physical custody of a child, absent a court order, the other would still have the authority to consent to medical treatment. If a provider is really uncomfortable with this kind of situation, it is possible to obtain an emergency court order about which parent can consent, but this is a last resort.
In addition, certain family members can consent to ordinary medical treatment for children, such as preventative care and testing, if the parents cannot be located. These individuals include:
- adult sibling; or
- adult aunt or uncle.
Consent for emergency or extraordinary procedures by someone other than a parent requires a court order or power of attorney.
Minor Can Self-Consent
Florida law does grant minors the authority to consent to their own medical treatment in certain situations where they would be unlikely to seek medical treatment if their parents were involved. The legislature felt that it was better for minors to receive treatment instead of avoiding it in fear of discipline from parents. The specific conditions covered by these exceptions include:
- female contraceptives;
- substance abuse treatment; and
- outpatient mental health treatment for minors over the age of 13.
Speak with a Lawyer
Co-parenting a child after a divorce requires a lot of give and take by both former spouses, and usually, with some compromise, parents can find their way to agreement. However, there are cases where agreement is not possible and legal action may be necessary to protect the rights of the parent or child. A family law attorney can advise on your legal options and rights in these kinds of situations, and help you secure the authority needed to protect your family. The Fort Lauderdale law firm Joyce A. Julian, P.A. has attorneys with many years of experience in a variety of family law matters. Contact the office to schedule a free consultation.