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Consenting Agreement
Posted in : Divorce

Medical Consent for Children

There are two terms that must be considered when it comes to consent for medical treatment: physical custody and legal custody. Physical custody typically refers to the parent with whom the children spend the majority of their time. Divorce in Florida favors shared physical custody between the parents, often called time sharing in the court system. But because the child spends time with each parent, questions can arise about who is responsible for making health decisions for the child in case of an emergency.

This is where legal custody comes in. Legal custody refers to which parent may make decisions involving medical treatment, among other factors. Legal custody may be “sole” or “joint” and sometimes have no bearing on visitation rights or schedules. The custodial parent, the one who the child is with at the time of the emergency, may not always be the parent that has legal custody.

In the matters of medical treatment, most procedures and treatment require the consent of the custodial parent in order to proceed. The exception to this is emergency medical treatment, in which case the noncustodial parent may consent to treatment, especially in cases where the custodial parent cannot be reached. In some states consent may be needed from both parents in order to proceed, such as when legal custody is shared by both parents according to the court-ordered agreement. This may include medically necessary, but not life-threatening surgeries, psychiatric and psychological treatment, and routine medical care.

Florida usually assumes joint legal custody for medical decisions regarding children. However, this may be changing thanks to a new appeals court case. An appeals court in Florida determined that both parents no longer need to sign off on medical treatment for a child. The ruling was issued by a three-judge panel of the 1st District Court of Appeals decision of an Escambia County circuit court judge’s decision regarding a 3-year-old child’s ear and adenoid surgeries. The mother gave consent while she was separated from the father.

The father objected to the surgery and sued the physician and the clinic that performed the surgery. He alleged battery and intentional interference with a parent-child relationship. The appeals court panel found that state law only requires the consent of one parent and pointed to the potentially “untenable” situation of medical providers having to mediate disputes between parents regarding performing procedures.

The nine-page ruling, written by Judge Susan Kelsey and joined by Judge T. Kent Wetherall and Associate Judge Angela Dempsey stated: “We conclude, just as the trial court did, that Florida law does not require health care providers to assume the burden of refereeing or going to court to resolve disputes between parents, so long as at least one legally authorized person provides consent.”

This ruling makes it very clear that divorced parents must come together to decide who is responsible for helping their children with medical treatment. Florida parenting plans have a section that talks about this. If you need assistance with building a parenting plan or understanding what your rights are under one, contact Frances E. Gustavo for a consultation.


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