Upon arriving at the office, you find a voicemail from a parent expressing frustration over not being contacted or consulted regarding their child's medical treatment during a recent visit.
After reviewing the patient's chart, it becomes clear that the parents are divorced and are struggling to agree on the child's medical treatment. One parent brought the child in for care, the other parent called concerned and angry that they were not consulted before care was rendered. This common situation puts a physician in an uncomfortable and potentially volatile position.
Members of the Cooperative of American Physicians (CAP) frequently seek answers from CAP’s risk management experts to questions like: 1) “How do I determine who has the legal authority to consent to medical care on behalf of the minor?” and 2) “Who has legal authority to access or receive copies of the medical records?”
Definitions, Codes, and Requirements
There are two types of custody arrangements: physical custody and legal custody.¹
- Physical custody indicates that the child resides with and is supervised by that parent. However, having physical custody does not always grant that parent the legal right to make decisions on behalf of the child.
- Legal custody means this specific parent has the power to make decisions regarding their child's education, religious beliefs, and healthcare. Usually, only the parent with legal custody can approve medical treatments for the child and give permission for their medical records to be shared with others.
- NOTE: Legal custody may be awarded to one parent (sole custody) or to both parents (joint custody).
Family Code Section 3006 states “sole legal custody” means that one parent shall have the right and the responsibility to make decisions relating to the health, education, and welfare of a child”.² The California Medical Association (CMA) indicates if parents share joint legal custody, they typically have equal rights to make healthcare decisions for their child.³ The CMA goes on to state that, “depending upon the terms of the court order awarding joint legal custody, it will either mean that one parent, acting alone, may consent to a recommended medical procedure; or, that the consent of both parents is required for certain, or all, medical decisions (Family Code §§3003, 3083).”³ This could mean that one parent has the authority to make medical decisions independently, or that both parents must agree on all or certain medical procedures. The CMA advises that in situations where parents with joint legal custody cannot come to an agreement on a recommended treatment, obtaining a court order may be necessary to resolve the issue, excluding emergency situations.³
Moreover, one parent cannot be denied access to medical records and information merely because they are not the child’s physical custodial parent (Family Code §3025).4
Proactive Risk Mitigation Strategies
How can you and your staff manage these tricky custody scenarios? And how do you determine who has the legal authority to consent for treatment?
To effectively manage disputes regarding consent for treatment, it is recommended that your office acquire a copy of the court order pertaining to custody. This document will detail the parental rights and should be stored in the child’s medical records. It is crucial to request this information during the initial intake process for new patients before discussing treatment options. Once the custody court order is received, make sure that your office's parent/guardian contact information aligns with the details outlined in the document.¹ One CAP member practice, after experiencing issues determining which guardian had legal authority to consent, added the following statement to their intake form: Parents: married/widowed/divorced. If divorced please provide a copy of court custody papers. As a result, this addition helped prevent the physician from getting caught in the middle and going back and forth between feuding parents. As a medical professional, your focus is and should be on the patient. Being pulled into the challenging dynamics of feuding parents can detract from this focus, cause disruptions to your practice, and even impact patient safety. Your intake process and office policies are key components that can help you proactively avoid potential issues. Consider adopting the following recommendations as part of your practice policies:
Intake Process
- Determine the parental relationship.
- Determine who has the authority to consent to medical decisions based on the court custody order.
- Determine who may have access to medical records and other administrative information based on the court custody order.
Joint Legal Custody
- Be the child’s advocate
- The pediatrician’s office should be a secure and welcoming space where children feel at ease.
- Prioritize the child and their best interests.
- Promote child-focused decision-making. Assist parents in considering the child’s needs and how medical choices will impact them.
- Set clear expectations
- Establish communication boundaries.
- Define guidelines regarding parental behavior, decision-making, and code of conduct in the office setting.
- Maintain neutrality. Refrain from favoring one side or making hasty judgments based solely on one parent's information.
- Keep conflict to a minimum by maintaining a calm and professional demeanor.
- Consider asking both parents to attend appointments regarding major decisions about their child’s medical care.5
- Maintain professional boundaries
- Stay out of the middle. Again, avoid being drawn into parental conflict and personal disputes.
- Maintain professionalism regardless of the parents’ behavior. Do not escalate your behavior as the parents’ behavior escalates.
- Navigating disagreements
- Do not provide non-urgent treatment until conflict regarding the treatment is resolved (if time and the child’s condition allow).
- If parental disputes interfere with your ability to care for the child, you may need to consider terminating the doctor-patient relationship.6
Determining who has the authority to consent to a minor’s treatment is crucial for the practice. Proactively establishing communication and behavioral expectations of parents/guardians can help prevent future conflicts. Take steps to ensure your staff is well informed about which individuals can give consent, approve the release of records, and function as the main point of contact for the child. If there is doubt as to the custody order and/or who may consent for medical treatment, seek guidance from your medical professional liability carrier to minimize risk and protect your minor patients.
Rikki Valade, RN, BSN, PHN, is a Senior Risk Management and Patient Safety Specialist. Questions or comments related to this article should be directed to RValade@CAPphysicians.com.
¹Mangels, Linda Sue, Cooperative of American Physicians, Inc., Treating Minors of Divorced Parents: Determining Consent to Treat December 10, 2014 https://www.capphysicians.com/articles/treating-minors-divorced-parents…
²California Legislative Information; Family Code, Chapter 1, Code 3006 https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?
³California Medical Association; California Physician Legal Handbook (2025), Minors Consent, section 3107
4California Legislative Information; Family Code, Chapter 1, Code 3025 https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?
5Forsyth, Nick; MagMutual, Navigating Parental Disputes over the Medical Care of Minors (2021). https://www.magmutual.com/healthcare-insights/article/navigating-parent…
6Segal, Jeffrey MD.JD. Medical Justice; Medicolegal Issues When Dealing with Separated and Divorced Parents of Minor Patients (2/17/2020). https://medicaljustice.com/blog/medico-legal-issues-when-dealing-with-s…