With some frequency healthcare providers pose the question, “Can I treat a child when the parents do not agree?”
As is so often the case in the practice of law, my response is always, “It depends.”
The first place to look for answers to this question is the current Court Order outlining the respective rights of the parents. Sometimes, there is no Court Order, but I will get back to that later. Assuming there is a Court Order, typically a Divorce Judgment or a Parental Rights and Responsibilities Order (if the parents were never married), it should provide some guidance.
Maine’s Family Court does not really refer to Custody anymore, but instead, the focus is on Parental Rights and Responsibilities, Primary Residence, and Parent/Child Contact.
Most of the time parents have Shared Parental Rights and Responsibilities.1 This means that a child’s welfare remains the joint right and responsibility of both parents. As such, both parents are required under Maine law to make joint decisions regarding, among other things, medical, dental and mental health care. Occasionally, and usually because there have been problems in the past, a Court Order will allocate certain Parental Rights and Responsibilities to one parent. For example, a parent may be allocated sole decision-making regarding the religious upbringing of a child. Likewise, a parent may be allocated sole authority to make decisions for purposes of healthcare. When one of these provisions is in a Court Order a provider has the rare, easy and certain answer: treat the child only if the parent with sole authority authorizes treatment.
When, as is the case a vast majority of the time, the parents have Shared Parental Rights and Responsibilities, both parents have a completely equal say in what treatment their child should receive from a provider. If they do not agree, there is no certain rule about what a provider should do. That said, my advice, based on past experience, would be for the provider to refrain from treatment that is anything less than urgent because it is almost certain the parent objecting will make a major issue about the unwanted treatment and complain about both the other parent and the provider to any authority that will lend an ear, including the Court. Waiting for consensus from the parents, or a Court Order, before treating a child ensures the provider is protected.
If the care needed is urgent that advice changes. Obviously, a provider is in a much better position if he or she provides urgent care to a child over the objection of one of the parents than if the provider does not provide care and the results are tragic.
While this is generally the extent of the advice I offer, there are a few other concepts that are helpful for a provider to know when faced with these decisions. As stated above, Maine Court’s often award Primary Residence to one parent over the other; this simply means that a child lives with that parent more than half the time.2 While a parent having Primary Residence, by default, will have to make many day-to-day decisions for a child without the input of the other parent, the title Primary Residence does not convey any special rights. Thus, a parent who claims to have superior rights to the other parent because he or she provides Primary Residence is simply wrong if both parents have Shared Parental Rights and Responsibilities.
Likewise, there is an argument that a parent can do what he or she wishes with a child during his or her allotted Parent/Child Contact as long as it does not pose any danger to the child. While this argument is frequently utilized to keep parents from interfering with the plans of the other, in my experience it has never extended to treatment of any kind, nor should it. Again, Shared Parental Rights and Responsibilities means the parties have to make decisions jointly, regardless of who is caring for the child at the time treatment is sought. The only way to know for sure whether a parent has shared or allocated parental rights is to see a copy of the Court Order. Sadly, parents are sometimes dishonest about their authority and sometimes, quite frankly, they simply do not understand their rights and responsibilities.
Another important question to ask is whether there has been any history of domestic violence in the family. If a parent obtains an Order of Protection from Abuse against the other parent on behalf of a child, this Protection Order would almost certainly grant that parent Sole Parental Rights and Responsibilities3 of the child, at least on a temporary basis. A parent with Sole Parental Rights and Responsibilities would have unilateral decision-making authority regarding treatment for the child. However, Protection from Abuse Orders have a limited duration and as soon as the Protection Order expires the underlying Divorce Judgment or Parental Rights and Responsibilities Order immediately control the parties rights.
This leads back to the question of what to do if there is no Court Order. In Maine, parents are presumed to have Shared Parental Rights and Responsibilities. Therefore, prior to the issuance of any Court Order, a provider should treat both parents as having equal decision making authority with regard to their child, regardless of who is bringing the child in for care or with whom the child lives.
Deciding whether to treat a child over the objection of one parent is rarely a simple matter. However, knowing what to ask and what documents to review ensures making a prudent decision.__
- Maine’s legal definition of Shared Parental Rights and Responsibilities can be found at 19-A M.R.S. §1501.5 here: http://www.mainelegislature.org/legis/statutes/19-A/title19-Asec1501.html.
- The concept of Primary Residence is primarily a distinction under Maine law for purposes of determining whether one parent is entitled to Child Support from the other parent. See 19-A M.R.S. §2001.7-8 here: http://www.mainelegislature.org/legis/statutes/19-A/title19-Asec2001.html.
- Sole Parental Rights and Responsibilities is defined by Maine law at 19-A M.R.S. §1501.6: http://www.mainelegislature.org/legis/statutes/19-A/title19-Asec1501.html.