Consent for the Treatment of Minors with Divorced Parents
By Bonnie R. Benitez, Attorney
Previously employed with CAMFT

The Therapist
November/December 2001


This article will address the specific circumstance of obtaining proper consent for treatment of a minor with divorced parents, and provide guidelines for therapists to follow to make the most appropriate decisions in difficult situations.

Parents who are married share the right to make decisions on behalf of their minor children. According to California law, each parent, acting alone, can consent to the mental health treatment of his or her minor child(ren). While it is generally advisable to seek the consent of both parents, therapists are not legally required to do so in cases where the parents' marriage is intact. However, if the parents have divorced, their rights to make decisions on behalf of their children are subject to the order given by the family court.

Examples and Options
A mother of a 6-year-old girl contacts a therapist seeking treatment for her daughter. The mother tells the therapist that she is fighting the father for custody of the child. She also tells the therapist that the father is against psychotherapy and would not approve of treatment. The mother believes the daughter should have someone to talk to professionally about how she is dealing with the divorce. She indicates that the child has been having nightmares and cries whenever she has to visit her father. The mother states that she has custody of the child and the father visits her every other weekend.

In this scenario, the therapist has several options, the therapist could:

  1. begin treating the child with the mother's consent, relying on the mother's word that she has custody of the child;
  2. begin treating the child with the mother's consent, with a plan to possibly contact the father later on, if the therapist deems it clinically appropriate to do so;
  3. ask the mother to check with her attorney to be sure that the consent of the father is unnecessary;
  4. ask the mother to contact the father and report back to the therapist as to his wishes;
  5. contact the father before beginning therapy with the daughter, to inform him of the daughter's therapy;
  6. ask the mother to provide a copy of the custody order, so the therapist can determine if she is legally permitted to treat the child without the consent of the father;
  7. tell the mother that the therapist has a policy of obtaining the consent of both parents whenever she treats a child.

The potential clinical and legal liability for each of these seven options will be addressed at the end of this article, as well as suggestions as to the best course of action for the therapist in this example.

Custody
When discussing issues of child custody, it is important to distinguish between legal custody and physical custody. Legal custody speaks to the authority of a parent to make decisions on behalf of his or her child, including mental health treatment. Physical custody addresses where the child will be spending his or her time. Physical custody is irrelevant as it pertains to issues around consent for the treatment of a minor. Thus, the fact that a minor lives with one parent does not mean that the other parent lacks the authority to make decisions on behalf of that child. Therapists should always focus on legal custody when addressing consent issues for minor children.

Generally, a parent will have to do something fairly egregious in order to lose legal custody of his or her minor child. Thus, an order of sole legal custody is the exception, not the rule. Courts tend to grant joint legal custody in most cases. When a parent has sole legal custody, that parent has the sole right to make decisions for his or her child. When parents have joint legal custody, they share the right to make decisions for their child. Thus, here too, either parent, acting alone can consent to the treatment of his or her minor child(ren), unless the court included language to the contrary in the custody order. A therapist should always request a copy of the custody order prior to the commencement of the treatment of a minor child, unless both of the parents will be consenting.

Typically, only one of the parents will be seeking treatment for the child. In such a case, the custody order will provide the therapist with information as to the status of legal custody, and the specific language critical to determining whether the consent of both parents is required. A therapist who treats a minor, without first reading the custody order, could subject him or herself to liability for failing to obtain the proper consent. Without reading the language of the custody order, a therapist would have to rely on the parent to tell him or her if he or she has the authority to consent to the treatment. Unfortunately, parents often assume that they have such a right when they do not. Some parents may even lie to a therapist to get their child(ren) in treatment, at the expense of the therapist, the child(ren), and the other parent.

Stepparents
Stepparents have no legal authority to consent to the treatment of minor stepchildren, unless the stepparents have adopted the children.

Clinical and Legal Implications
In most cases, even if the consent of only one parent is required, it is clinically appropriate to obtain the consent of both parents. Therapists can inadvertently alienate a parent by failing to seek the consent of that parent prior to the commencement of treatment. This alienation can lead to mistrust of the therapist, which can undermine the treatment of the minor.

Parents Who Disagree
If the therapist has sought the consent of both parents, and the parents disagree about the appropriateness of treatment, it is in the therapist's best interest to suggest that the parent seeking treatment approach the court to decide whether treatment is in the child's best interest.

Your Office Policy
One way of dealing with the troublesome issue of consent with divorced parents is to have an office policy that you only treat minors with the consent of both parents who have legal custody. Such an office policy would allow you to insist that both parents consent, in cases of joint legal custody or an intact marriage. It would also allow one parent to consent in cases where that parent retains sole legal custody. However, even with such a policy in place, it is still advisable to request a copy of the custody order, read it, and retain it for your records to be assured that you have acquired the proper consent prior to the commencement of treatment.

Withdrawal of Consent
Where there is joint legal custody requiring the consent of both parents, and both parents initially consent, the withdrawal of consent on the part of one parent will not necessarily mean the treatment must cease. Where one of the parents withdraws his or her consent after the commencement of treatment, one could argue that if a decision to commence treatment could not be made unilaterally, the decision to terminate the treatment also cannot be made unilaterally. If the order of joint legal custody does not require that both parents consent to the treatment, then the therapist may continue to treat with the consent of one parent even if the other parent withdraws or refuses to give consent.

If a parent has sole legal custody of the child, that parent has the right to unilaterally make health care decisions for the child. Should the parent with sole legal custody refuse or withdraw consent, the therapist may not treat the minor.

Examples and Options

  1. If the therapist decided to treat the child, relying solely on the mother's word that she has "custody" of the child, the therapist may be facing a few potential legal and clinical problems. First, the therapist would not know if the mother was referring to physical or legal custody. Second, the therapist would not know whether the mother was being accurate or truthful in her assertion that she had custody of the child. Third, the therapist may be treating the child without proper consent, if the custody order requires the consent of the father as well. Fourth, the therapist may be intentionally or inadvertently alienating the father by not seeking his consent and participation in the child's therapy.
  2. The therapist begins treating the child with the mother's consent, with a plan to possibly contact the father later on. Here the therapist may be facing many of the same problems listed in the answer from #1.
  3. The therapist asks the mother to check with her attorney to be sure that the consent of the father is unnecessary. Here the therapist would be relying on the mother and the mother's attorney to provide information the therapist could otherwise locate, and have certainty about, if he or she read the custody order.
  4. The therapist asks the mother to contact the father and report back to the therapist as to his wishes. Here the therapist would again be relying on the truthfulness of the mother, with some of the potential problems outlined in the answer to #1.
  5. The therapist decides to contact the father before beginning therapy with the daughter, to inform him of the daughter's therapy. Here the therapist would hopefully avoid any inadvertent alienation of the father. This may be a good start, depending upon the therapist's ability to balance the needs of the child, mother, and father.
  6. The therapist asks the mother to provide a copy of the custody order, so the therapist can determine if he or she is legally permitted to treat the child without the consent of the father. Here, the therapist will be taking an important first step in determining who has the legal authority to consent to the treatment of the minor. After reading the custody order, the therapist should know whether the mother has the authority to consent to the treatment unilaterally. If the custody order indicates that the consent of only one parent is required, the therapist can make then a clinical determination as to whether it is appropriate to begin treatment with the consent of only one parent. This decision must be made on a case-by-case basis, with the clinical needs of the patient in mind.
  7. The therapist tells the mother that he or she has a policy of obtaining the consent of both parents whenever he or she treats a child. Generally, this is the best option. There may be exceptional circumstances in which a therapist will determine that it is clinically appropriate to treat a child with the consent of only one parent. For example, if the other parent cannot be located, is incarcerated, etc. However, this may only be done if the consenting parent has the legal authority to do so.

Conclusion
When parents are battling over custody issues, therapists are sometimes used as pawns in an effort for one parent to "win" over the other parent. Don't let this happen! Always make an effort to communicate equally with both parents regarding their child's treatment. Seek the consent of both parents, even if the custody order doesn't require it. Always acquire, read and retain a copy of the most recent custody order for your records. CAMFT members should call our office for a legal consultation whenever they are faced with a com plicated consent issue.


This article appeared in the November/December 2001 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.

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