When one parent has custody and the other doesn’t, there can be tension over who makes specific decisions on the child’s behalf. It can be a complex topic in which each divorce settlement and child custody agreement can specify different things. What follows is an overview of what to know regarding medical decisions for a child whose parents are divorced.
What Are the Different Legal Types of Child Custody?
Besides custodial (or residential) and non-custodial (alternative residential) custody, in Tennessee, courts also determine both physical and legal custody.
- Physical custody. This determines whom the child lives with. Either one parent will be assigned sole custody, or both parents will receive joint custody, in which each parent has the child living with them on a predetermined schedule.
- Legal custody. This involves the parent’s rights to make decisions for the child, including medical care and how the child will be raised.
Many people undergoing divorce and child custody and support settlements ask for sole custody, thinking that will grant them both sole physical and legal custody. However, that’s not always the case; in Tennessee, it’s rare for family law courts to award sole legal custody rather than joint.
Does the Non-Custodial Parent Have the Same Rights as a Custodial Parent?
A non-custodial parent, sometimes called an alternative residential parent (ARP), has specific rights in Tennessee, just as the custodial parent (or residential parent) does. Tennessee law mandates that unless the court finds it not to be in the best interests of the child in question, both parents have certain rights. Those include:
The right to receive timely information (within 24 hours max) when a child is hospitalized, undergoes a significant illness or injury, or dies. The law states that the parent who has the child at that time must inform the other parent. Suppose the non-custodial parent has visitation rights and the illness or injury occurs during those times. In that case, they have the right to seek medical attention as long as they notify the other parent.
Both parents also have the right to receive copies of the child’s medical records or other treatment and health records. Each parent has the right to request those records from the primary physician directly. Suppose one person seeks out medical care for a child. In that case, they’re required to not only provide that information to the other spouse, but they need to provide all relevant information, such as the doctor’s name and phone number or the hospital’s name and address.
Are There Exceptions to the Non-Custodial and Non-Legal Custody Parent Being Able to Make Medical Decisions for Our Child?
The exceptions are rare because the courts are reluctant to legally rule that one parent has zero rights in how the child is raised, including in medical decisions. There are some exceptions for child abuse or domestic abuse, where the non-legal custody parent could actively harm the child.
Another exception that may apply is if the non-custodial parent is a member of a religious group that doesn’t believe in medical care. If the child is with the non-custodial parent and becomes ill or injured to the degree that they’re at risk of death or life-changing disabilities if not treated, the court may step in and allow the custodial parent to make medical decisions at that point.
One area that’s become increasingly contentious in recent years involves vaccinations. As some parents have become opposed to vaccinations for various reasons (including but not limited to religious), courts hear more cases from divorced parents with opposite viewpoints. This is a complex situation in that while research shows vaccinations can prevent deadly illnesses, they’re not technically a life-saving treatment at the time they’re administered. Because this falls under the category of legal custody, not physical custody, and because legal custody is often joint in Tennessee, being unable to agree could mean lengthy (and expensive) court visits.
Can a Parenting Plan Help if My Spouse and I Are Divorcing and Disagree about Medical Treatments for Our Child?
Tennessee law requires divorcing parents to create a parenting plan and submit it to the court before finalizing custody. This document can specify how legal custody is to be handled, who can make what decisions, and when. It’s highly recommended that you have an experienced divorce and custody attorney help you through the negotiations for this, which can become contentious. Because it’s not likely that Tennessee courts will award sole legal custody unless there are extenuating circumstances discussed above, there may need to be compromises and concessions from both sides.
Suppose both parties agree to medical decision-making when the parenting plan is created. In that case, it’s still a good idea to include language that addresses what happens if one parent changes their mind later. Allowing for mediation at that point is recommended.
What Should I Do if I’m Worried About My Non-Custodial Ex Making Medical Decisions for Our Child?
Call me at 615-970-6448 to request a no-obligation case evaluation as soon as possible. The health and well-being of your child are obviously top priorities, and being sure that the right decisions are made to protect their health is vital. We’ll help you understand your rights under Tennessee law and explain your options.
If you’re planning on filing for divorce and sole physical custody, we’re here to help with that and can help you plan for legal custody as awarded by the court. As noted above, Tennessee courts tend to lean toward joint legal custody. But if your case has extenuating circumstances, we can build the case from that angle.