Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

After a New Jersey Divorce or Child Custody Dispute, Which Parent Makes Medical Decisions For The Children?

A majority of New Jersey divorces (and custody disputes) result in the parents’ enjoying joint legal custody.  Essentially, in a joint legal custody situation, the parent’s are “equal” as to significant decisions regarding the children.  However, when one parent is named Parent of Primary Residence (also known as the parent having primary residential custody) often must make certain determinations regarding the welfare of the child.  In New Jersey, Brzozowski v. Brzozowski is the paramount case that family lawyers and judges look towards when a child’s parents cannot agree regarding medical decisions for the child. 

In this case, the parties were married in 1977 and divorced in 1990. A daughter was born of the marriage in 1983. Upon the parties divorce they executed a written agreement, which was incorporated into the final judgment. The agreement provided, among other things, for the following important provisions: 

(1) The parties would have joint legal custody of their daughter. Specifically, the parties would have mutual decision-making abilities with regards to their daughter’s health, education and welfare. The custodial parent (mom) would make all other day-to-day decisions.

(2)  If any medical expenses for the parties’ daughter were unreimbursed, the parties would share equally in the expense, 50/50.

(3)  Neither party would sustain any major medical expense without the knowledge and consent of the other party unless it was a dire emergency.

In May of 1992, the father was riding his bike with his daughter perched on his handlebars when she suddenly fell off. While the father did not believe his daughter was seriously injured, she wound up fracturing her nose. When the mother brought her to the doctor, the doctor recommended surgery, a tonsillectomy, and an adenoidectomy. The mother informed the father of the doctor’s recommendations; however, the father wanted a second opinion and brought his daughter to see a specialist in New York City. The Manhattan doctor concluded that surgery was unnecessary. He sent a copy of his examination to the child’s mother and the initial physician. The father also brought his daughter to see another doctor, also who concluded that surgery was unnecessary.

After obtaining the two other opinions, the father sent a request to the mother to have the surgery be reconsidered. Yet, he did not hear back from the mother so he decided to take measures into his own hands. He filed an order to show cause, in hopes of preventing the mother from scheduling the surgery. The mother, outraged by the father’s request, cross-moved arguing that he had no right as the non-custodial parent to object to the medical decision she had previously made for their daughter.

The trial court looked to cases from other states as persuasive, in addition to the landmark case of Beck v. Beck for guidance on joint custody decision-making.

Ultimately though, the trial court concluded that the mother should have the upper hand in the situation. The court stated that it would afford the custodial parent with more authority to decide issues in the event of a disagreement between parents in spite of a joint legal custody arrangement. The reason for this was that as the primary residential custodian (or Parent of Primary Residence), the mother was in a much better position to make this decision. Even though the father’s input would be taken into account, he had no authority to oppose the mother’s decision without showing that the surgery was not in his daughter’s best interest.     

Even though it has been over twenty years since the case was decided, Brzozowski is still the leading case in New Jersey that addresses which parent will ultimately get to make medical decisions for the children. If you have any questions about this common issue, please do not hesitate to contact my office today. Thank you.