Medical Decisions for Children of Divorce

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Naturally, some parents may have differences of opinion regarding medical decisions involving their minor child. Following a divorce, parents might find it even more difficult to collaborate and navigate these differences of opinions. As we managed our way through a global pandemic, new legal issues emerged for divorced parents to consider, including what to do if the parents do not agree on medical decisions – for example, whether their child should receive a COVID-19 vaccination and booster.

In general, parents have a constitutional right to make decisions regarding the care of their children. This right is derived from the Due Process Clause of the Fourteenth Amendment. This constitutional right, though not absolute, includes the right of parents to make medical decisions for their children. Currently in Ohio, there is no case law on the issue of vaccination orders, though it is likely not far off, as other states have already addressed the issue.

If legal custody (not to be confused with physical custody) is assigned to only one parent, that parent will have the power to make important decisions about their child’s life, including medical decisions, without having to consult with the non-custodial parent. If parents have joint legal custody of their child, there must be mutual agreement between the parties prior to making major medical decisions.

A parent can look at a prior court order – i.e., judgment entry of divorce/dissolution or parenting plan – to determine the type of custody he/she has and which parent is the primary decision maker for medical care. In some instances where the parents have joint legal custody, and they are unable to mutually agree on the decision, they are to defer to the recommendations of their child’s treating physician.

If parents are unable to resolve decisions regarding the medical care of their child, even with the assistance of a child’s treating physician, the parents can file a motion with the court to modify their parental rights and responsibilities, specifically, which parent is assigned with making medical decisions for the child. Orders affecting children are always subject to change in the future. Each issue has a different standard of review for determining whether a change is appropriate. In modifying which parent will make medical decisions for a child, the court will do a “best interests of the child” analysis.

Obviously, modification of parental rights through the court will take more time that an amicable decision. It will also cost the parent filing the motion in court costs and legal fees. Though it may not be easy, often the best option for parents with joint custody is to come to a mutually agreeable decision on the medical care of their children together.

Rebekah A. Cline