Skip to main content

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.


Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date. If you filed a Complaint for Divorce  then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date. Therefore, for 90 - 120 day