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

If Parents Have Joint Legal Custody, Do They Both Have Equal Input If A Child Needs Surgery?

            Yes.  As a New Jersey child custody lawyer I am well aware that when parents have joint legal custody over their child, they must come to an agreement regarding surgery.  The only exemption would be a true medical emergency.  Following please find this attorney’s analysis of a recent New Jersey appellate decision that provides more background as to New Jersey’s child custody law as to joint legal custody.

            In M.T. v. D.T., the Honorable Judge Jones of the Superior Court of New Jersey, Family Part of Ocean County explored what should happen when two divorced parents, who both serve as joint custodians of a minor child, cannot come to an agreement for an important medical decision in a child’s life, specifically, which parent should have the power to move forward with a medical treatment, or if the child’s health must be held in an indefinite limbo while the parents battle in potentially lengthy litigation. Judge Jones held that while joint custody is favored as a matter of public policy, when the parents show that they are not able to come to an acceptable agreement in regards to important issues in a child’s life, like surgery and medical care, then joint custody may be subordinated behind the child’s best interest, and the need to have one parent with decision making authority to resolve such important issues, to ensure the child receives appropriate and timely medical attention without the treatment getting delayed.

            Moreover, New Jersey Statute 9:2-4, this state’s custody law, gives the Family Part power to enter orders of joint custody or sole custody. However, this law also gives a Family Part court power to consider a seldom used, but equally valid, third option, under N.J.S.A. 9:2-4(c), that allows the court to enter any other custody arrangement that the court may consider to be in the best interests of the child. Such an arrangement may include, as long as it is in the child’s best interest, a hybrid combination, on a temporary basis, that contains elements of both sole and joint custody, relating to the child’s need for medical attention, or any other immediate needs the specific facts of the case call for it.

            Furthermore, in New Jersey, both divorced parents have equal rights to custody of a child after a divorce or separation. In this state there is no presumption that a mother is more capable than a father, or the other way around. Custody determinations are fact specific, and gender neutral.

            Finally, when the Family Part uses N.J.S.A. 9:2-4(c) and assigns one of the parents as a temporary, medical custodian of a child to arrange and oversee that child’s medical needs, such an arrangement does not otherwise change any previous arrangement where the parents continue to serve as joint legal custodians, for the other aspects of the child’s life.

            M.T. and D.T. got married in September of 1992, and then divorced twenty three years later in 2015. According to their divorce settlement agreement, the parents would share equal joint custody of their three children, and neither parent would be designated as the primary residential custodian. They also agreed to keep each other informed of any health related issue or medical appointments that may arise. Despite their agreement, the parents still experienced a contentious and litigious post-judgment history, which raised serious questions about their actual ability to serve as joint custodians in a cooperative manner.

            Their current dispute concerned their sixteen year old son, Robert, who suffered a sports injury to his arm and elbow. The first surgeon recommended non-emergent orthopedic surgery to help alleviate the child’s pain. D.T., the father, then scheduled the child for surgery for October 21, 2016, but did so, without M.T.’s consent. As a result, on October 11, 2015, M.T. filed an emergent order to show cause, and alleged that her ex-husband had scheduled their son for surgery without first informing and obtaining her consent as a joint custodian. She objected to the surgery, and stated that she wanted to get more medical information.

            The parents appeared in court on October 12, 2016.  D.T.  stated that he scheduled their son for surgery based on medical advice, and that despite the joint custody arrangement, Robert had been mainly staying with him over the past year, and had not spent substantial time with his mother. M.T. confirmed this fact, and argued that she would agree to the surgery, but merely wanted the time to first consult with the surgeon, and perhaps obtain a second opinion. At the end of the hearing, the court entered the order which stated that both parents, as joint custodians, would have the opportunity to come to an agreement about the child’s medical care.

            A second surgeon also recommended surgery, but with some apparent differences in approach. The first surgeon recommended a more limited, conservative surgical approach, while the second surgeon recommended an aggressive approach. M.T. wanted the second surgeon to perform the surgery, while D.T. still wanted the first surgeon to complete the surgery. They could not agree on which surgeon to use, meanwhile the child was not receiving the medical treatment he needed.

            Judge Jones explained that a child’s life cannot just stand still while his or her parents take part in a drawn out litigation battle. As such, a Family Part court has to consider a child’s present circumstances that affect his or her welfare. Here, the parents remained unable to consensually resolve the important medical issues that affected their son. In such a circumstance, New Jersey Statute 9:2-4(c) authorizes the Family Part to order any custody arrangement the court may consider to be in the best interest of the child.

            According to New Jersey Rule of Evidence 201(b) one of the most fundamental and important needs of a child is protecting his or her physical health. Another fundamental need is for the child to have functional instead of dysfunctional parents, who can cooperate with each other. In an issue involving the choice between parents’ rights and children’s rights, the court will always chose the children’s best interest and welfare.

            Judge Jones found that in consideration of the child’s best medical interest, and the evidence at hand, and while keeping the general status of the parents as joint custodians, the Family Part granted, D.T., the father, the power to serve as Robert’s temporary medical custodian, for the sole purpose of setting up the child’s surgery and medical treatment for his elbow and arm. D.T. was selected for fact specific reasons, including the fact that he was already seeing to Robert’s arm injury. Furthermore, the child had spent more time with his father over the last year, and was essentially living with him on a primary basis. As such, any ongoing medical needs related to the arm and elbow surgery, would likely occur at D.T.’s house. With that said, Judge Jones was sure to mention that this did not mean that D.T. has the right to keep M.T. in the dark. As a court appointed medical custodian, he had a concurrent and ongoing obligation to keep his ex-wife fully informed, in advance, of all scheduled appointments and medical information in relation to the injury and surgery.

            This designation as medical custodian would not change the parent’s status as joint custodians in any other regard. This would be a temporary, hybrid designation, under N.J.S.A 9:2-4(c), to allow the child’s surgery to start without any further delay.