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Thursday, March 31, 2016

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: Assumption 2 – Consent to Medical Treatment

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received?

Assumption 2: A Parent without Legal Custody Cannot Consent to Medical Treatment or Secure New Medical or Therapeutic Providers for Their Child(ren)

One of the most widely held assumptions about legal custody is that a parent who lacks legal custody cannot sign a child up for medical treatment, speak to a child’s doctors or therapists or fully participate in the child’s medical or therapeutic care. However, parental consent for children’s medical treatment is controlled by a separate set of loosely-related statutes, none of which actually use the phrase "legal custody".

For example, M.G.L. c. 231, § 85P states that a child under the age of 18 lacks legal capacity to make decisions on his or her own (this has been interpreted to include consenting to medical care). Meanwhile, M.G.L. c. 123, § 10, the statute dictating admissions to mental health facilities, grants authority to any "parent or guardian" of a child to admit a child into a mental health facility without mentioning legal custody.

On first blush, M.G.L. c. 112, § 12S, which limits the ability of minors to obtain an abortion without parental consent, comes closest to blending medical treatment with legal custody, where it requires both parents of a minor to separately consent to an abortion:

If a pregnant woman is less than eighteen years of age and has not married, a physician shall not perform an abortion upon her unless he first obtains both the consent of the pregnant woman and that of her parents, except as hereinafter provided. ... If the pregnant woman's parents are divorced, consent of the parent having custody shall be sufficient. 

Even here, however, the statute uses the generic, undefined “custody” (which can be understood as whichever parent has the child in his or her physical care at that particular moment) without using the phrase “legal custody”. Moreover, in Planned Parenthood League of Mass. v. Attorney General, 424 Mass. 586, 598 (1997), the SJC held that the portion of M.G.L. c. 112, § 12S that requires two parent consent is unconstitutional. Accordingly, even if the parents of a minor seeking an abortion have shared legal custody, it would legal for an abortion provider to provide care to a minor patient who has only one parent’s consent – even if the other parent objected.

None of the statutes controlling parental consent for medical treatment for a child limit consent to parents with legal custody. And where M.G.L. c. 208, § 31 provides parents with complete access to a minor’s medical records, providers who claim that they cannot communicate or work with parents who lack legal custody appear on HIPAA or other grounds who appear to be, well, just making it up. There is simply no statutory law or case law that supports the notion that a parent who lacks legal custody cannot consent to medical treatment on behalf of their child.  Because the court has broad discretion to make orders in the best interest of the children a Judge can exclude a parent from having that access, but the exclusion is not set simply by a designation of sole legal custody with the other parent.

Previous Post: Assumption 1 – Access to School & Medical Records

Next Post: Assumption 3 – The Shared Custody “Veto Power”

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

Tuesday, March 29, 2016

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: Assumption 1 – Access to School & Medical Records

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, which focuses on the physical location/residence of the children, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. But what rights does legal custody really include? Virtually every custody case in Massachusetts includes an order for legal custody, but few clients, attorneys or even judges seem able to define exactly what the phrase means.

The Statutory Definitions: Legal Custody

Under the Massachusetts divorce statute, "shared legal custody" is defined as the “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” Meanwhile, the statute defines "sole legal custody" as when "one parent shall have the right and responsibility to make" the same "major decisions" regarding the child. (The Massachusetts unmarred parent statute references “legal custody”, but does not separately define the term.)

Notably, the divorce statute does not define what constitutes a "major decision" in the context of legal custody, nor have any major Massachusetts cases provided a reliable definition of what constitutes “mutual responsibility and involvement” or "major decisions" under M.G.L. c. 208, § 31. All of which begs the question: what has a parent who has been awarded legal custody really received?

Common Assumptions about Legal Custody

Below is a list of common assumptions people often make about legal custody in Massachusetts:

  1. A parent who lacks legal custody cannot access the educational or medical records of their child(ren).
  2. A parent without legal custody cannot consent to medical treatment for their child(ren).
  3. A parent with shared legal custody can “veto” the major educational, medical and/or religious decisions of the other parent.
  4. Shared legal custody is presumptive for married/divorced parents, but sole legal custody is presumptive for the mother of a child born out of wedlock.

Examining the truth of these assumptions is a challenge, since so many lawyers (and even judges) seem to follow the assumptions by rote, without regard for the underlying law.  However, neither the definition of legal custody set forth in the Massachusetts divorce statute – nor the definitions offered in the sparse case law on legal custody – support any of these assumptions, other than perhaps the last example regarding presumptive shared legal custody for divorced parents. In this five-part blog series we will explore each of these assumptions in depth, and try to address what “legal custody” really means:

Assumption 1: A Parent without Legal Custody Cannot Access the Medical or Educational Records of Their Child(ren)

With respect to medical and educational records, the divorce statute provides:
The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party …
Translation: even a parent without legal custody can access the "the academic, medical, hospital or other health records of the child", absent a specific order barring the non-custodial parent from having access to such records. This access is separately embodied in another Massachusetts statute, controlling access to children's educational records:
For purposes of this section, any parent who does not have physical custody of a child shall be eligible for the receipt of [educational] information unless: (1) the parent’s access to the child is currently prohibited by a temporary or permanent protective order, except where the protective order, or any subsequent order which modifies the protective order, specifically allows access to the information described in this section; or (2) the parent is denied visitation or, based on a threat to the safety of the child, is currently denied legal custody of the child or is currently ordered to supervised visitation, and the threat is specifically noted in the order pertaining to custody or supervised visitation.
Translation: a parent's lack of legal custody shall only limit the parent's access to educational records if the parent is denied visitation completely, or if the order granting sole legal custody to the other parent specifically states that the non-custodial parent poses a "threat to the health or safety of the child."

The Practical Definition: the Unwritten Rules of Legal Custody

Despite the absence of references to medical and educational records in the statutory definition of legal custody, the practical reality for parents who lack legal custody is that they often struggle to access their children’s medical and educational records.  Why?  Because many schools and medical providers believe that parents without legal custody lack the right to access a child’s records, and for these parents, the formal definition of legal custody offers little solace.  After all, what recourse does a parent lacking legal custody really have if a school or medical provider refuses to provide records? In practice, parents without legal custody are routinely denied access to their children’s medical and educational records, despite the existence of Massachusetts statutes that seem to guarantee access.

It is not unusual for major gaps to exist between the formal strictures of “the law” and its practical applications. For example, when was the last time a person was prosecuted for adultery in Massachusetts, despite it being against the law? How about the last prosecution for consensual sodomy, which still carries a prison sentence of up to twenty years under Massachusetts law? Such examples illustrate how Massachusetts law can have little meaning if citizens choose not to follow it. The difference between such examples and legal custody, of course, is that legal custody remains an active, frequently litigated area of Massachusetts law, while prosecutions for adultery and consensual sodomy are practically non-existent.  In this context, the gap between how Massachusetts law defines legal custody, and the practical definition used by individuals and organizations throughout the state, is rather striking.

The purpose of this blog series is to explores the gaps between how legal custody is formally defined under Massachusetts law – i.e. by Massachusetts statute and appellate case law – and the broad and pervasive assumptions about legal custody that seem to drive how most parents, lawyers, judges and medical and educational providers interpret legal custody in practice.  Readers should be forewarned: the opinions in this blog series are not legal advice, and readers should understand that in many cases, the ingrained assumptions that exist about legal custody in Massachusetts have greater practical importance than the formal definitions found under the law.

Next Post: Assumption 2 – Consent to Medical Treatment

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

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