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.

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