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Temporary Medical Custody for Divorced Parents

When Divorced Parents Cannot Agree on Their Child’s Medical Care:  The Importance of Cooperation in Co-Parenting

A recent case brought before the Ocean County Superior Court demonstrates the importance of communication and cooperation in co-parenting. The case involved the divorced parents of a 16-year-old boy who injured his arm and elbow in a sports accident. The father allegedly scheduled the child’s surgery without obtaining his ex-wife’s prior consent. She wanted and was granted the right to consult another surgeon and get a second opinion. Both parents believed their chosen surgeon was best, and neither would give in. The father filed an emergency application for sole legal custody, maintaining that the boy’s mother was holding up the child’s treatment.

Because the couple was unable to reach an amicable agreement, the boy’s injuries were not being addressed.

The Decision

Judge Lawrence Jones ruled that the Court can give temporary custody to one parent even though the couple’s divorce agreement gave them joint legal custody if it is in the best interests of the child. In coming to this decision, he relied on New Jersey case law.

New Jersey Case Law

Judge Jones cited the following factors to explain how he arrived at that decision.

  1. Although public policy encourages joint custody, there are exceptions. When the parties cannot agree on issues that affect a child’s health, it might be necessary for one parent to have the authority to make decisions.
  1. New Jersey’s child custody statute not only authorizes a court to grant joint or sole custody, but also permits the court to enter any other arrangement that is “in the best interests of the child.”
  1. In New Jersey divorced mothers and fathers have equal rights. Gender should not be a factor.
  1. When a NJ court designates one parent as temporary medical custodian, both parties continue to have joint legal custody in all other matters unless otherwise ordered by the court.

Temporary Medical Custody

After speaking to both surgeons over the phone, he concluded that although the two physicians disagreed on the best treatment, both were qualified and well respected. Therefore, the choice of surgeon would not be a factor in his decision making.

To resolve the matter at hand, Judge Jones decided to give temporary medical custody to the boy’s father. For all other matters, both parents would retain joint legal custody.

The judge chose the boy’s father for the following reasons:

*  Although the parents had joint custody, the son had been spending a lot more time with his father. Practically speaking, the father had physical custody of his son.

*   Because the child was living mostly with his father, the father would likely be the one who would provide most of the care needed after the surgery.

Co-Parenting Requires Cooperation

The couple in this case had a very contentious post-divorce relationship. There was a lot of bitterness, and the two did not agree on several issues. Although both parents loved the child, their inability to communicate and cooperate with one another jeopardized the boy’s well being.

Judge Jones stressed the importance of communication and cooperation in a co-parenting arrangement. He warned both parents that unless they learn to cooperate with one another in the best interests of their child, one or both of them might lose their decision-making rights in the future.

The judge further emphasized this fact by noting that the New Jersey Legislature listed “the ability to agree, communicate and cooperate in matters relating to the child” as the first among 14 factors the court is required to consider when making a decision about custody.


Do you have questions about co-parenting or other custody arrangements? The child custody attorneys at Aretsky Law Group, P.C., can help. For an initial consultation, call us 24/7 at 800-537-4154.


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