What to do when parents with joint legal custody disagree on a course of medical treatment for a child?  A recent decision this week out of Ocean County Family Court lends some guidance by expanding the role Judge’s may play in such decisions. 

The decision by Judge Lawrence Jones in a case where neither party had legal representation holds that the Court can appoint one parent as the child’s temporary “medical custodian” even where the couple has joint legal custody.  In joint legal custodial situation, both parents are supposed to have an equal say in all matters related to the health, education, and welfare of the child or children.  Quite often, however, there is disagreement as to what is in the child’s best interest.

The specific case in question, M.T. v. D.T., involved a dispute over which surgical procedure was to be used, and which surgeon would be selected to address a sports injury suffered by the child.  While established case law has vested much “tie-breaking” authority in the parent designated as the “parent of primary residence” in joint legal custody situations, Judge Jones referenced the “health of the child” as one of the factors that a court is supposed to consider in deciding custody issues.  As such, he apparently relied on the “parens patriae” or “legal protector” powers of the state to allow for the designation of such a “medical custodian” when the child’s welfare is deemed to call for such.

Judge Jones limited this new authority to the one medical procedure in question and emphasized that it was based on the doctor’s need to have clear parental consent for the specific surgery in question.  It is unclear whether this decision will have lasting impact.  As a trial level Judge, Jones’ opinion does not carry precedential value and the decision is considered “unpublished” at this time.  Other Judges, even within Ocean County, are not obligated to follow the ruling.  That said, the idea of providing one parent with decision-making authority in such situations is not without support and the opinion may ultimately be embraced or affirmed by the Appellate Court in the future.