Attorney Articles | Understanding Minor Consent Within Different Parental Relationship Structures
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Articles by Legal Department Staff

The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.

Understanding Minor Consent Within Different Parental Relationship Structures

There are many complexities surrounding the consent laws for the treatment of minors. CAMFT Staff Attorney Luke Martin, MBA, JD, reviews the relevant legal terminology with examples, paying special attention to who is eligible to consent for a minor’s therapeutic services, while keeping the clinical perspective in mind.

Luke Martin, MBA, JD
Staff Attorney
The Therapist
January/February 2021
Luke Matthew Martin, MBA, JD (CAMFT Staff Attorney)
Reviewed November, 2022 by Luke Matthew Martin, MBA, JD (CAMFT Staff Attorney)


Given the complexities surrounding the consent laws for the treatment of minors, some therapists are under the impression that the law requires them to receive consent from both parents or guardians when introducing a minor into their practice. However, the minor consent laws are generally a bit more flexible and do not always require the therapist to receive consent from all parties.

Understanding Legal Terms
When dealing with minor consent, it is critical to understand the difference between the two types of custody: physical and legal. The law includes multiple variations of these terms, defined as such:

  • “Joint custody” means joint physical and joint legal custody.1 This is the traditional arrangement for biological parents.
  • “Joint legal custody” means that parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.2
  • “Joint physical custody” means that each parent shall have significant periods of physical custody and that physical custody shall be shared in such a way as to assure that a child has frequent, continuing contact with each parent.3
  • “Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.4
  • “Sole physical custody” means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation with the other parent.5

Parents Are Unmarried
In a scenario where the parents are not married when a child is born, the parent that is requesting therapeutic services from the clinician may need to provide documentation to support their legal right to consent to the treatment of a minor. When confronted with this situation, the therapist should be aware of potential cultural and clinical issues surrounding the request so they can avoid triggering hurt feelings.

When a child is born to unmarried parents, the parentage of the child needs to be established by the courts for the non-natural (non-birthing) partner to gain legal rights. According to the California Courts, “[e]stablishing parentage means obtaining a court order or signing an official declaration of parentage or paternity that says who the legal parents of a child are.”6  

For example,

[I]f parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until parentage is established. So even if a father can prove he is the biological father of a child, if he was never married to the mother, he does not legally have any rights or responsibilities for the child. For that, parentage must be established legally.7

If in this scenario the rights of the alleged father have not been established and there have been no challenges to the natural mother’s legal custody, then the mother would have “sole legal custody.” The parent holding sole legal custody has the exclusive right to make the decisions relating to the health and welfare of the child. This person alone would be able to consent for treatment on behalf of the minor unless the minor can consent on their own.

If in this scenario the rights of the father have been established, the father would be afforded the same rights and privileges as the natural mother. Should the rights of the father be established and there have been no challenges to either the natural mother’s or the presumed father’s parentage, then the parents would have “joint custody.” In a scenario where parents hold joint custody, either party has the right to make the decisions relating to the health and welfare of the child. So, either party would be able to consent to the treatment of the minorunless the minor can consent on their own.

If the legal relationship of a guardian to the minor is in doubt, the clinician can at their discretion request a copy of the birth certificate or the child custody agreement/order, which should include a judge’s signature, for further clarification.

In a scenario where the parents are married when a child is born, there is generally no question about parentage. The law assumes that married persons are the child’s legal parents, so joint custody is automatically established in most cases.8 As of January 1, 2005, if the parents are registered domestic partners when a child is born, the law assumes that the domestic partners are the child’s parents.

If in this scenario the parents hold joint custody, either party has the right to make the decisions relating to the health and welfare of the child. So, either party would be able to consent to the treatment of the minor unless the minor can consent on their own. If the legal relationship of a guardian to the minor is in doubt, the clinician can at their discretion request a copy of the birth certificate or the child custody agreement/ order, which should include a judge’s signature, for further clarification. When confronted with this situation, the therapist should be aware of potential cultural and clinical issues surrounding the request.

Parents Are Divorced
In a scenario where the parents are separated or divorced, the parent that is requesting therapeutic services from the clinician may need to provide documentation to support their legal right to consent to the treatment of a minor. The legal custody arrangement established between the parties governs what form of consent is required.

If in this scenario the parents hold joint custody or joint legal custody, either party has the right to make the decisions relating to the health and welfare of the child. So, either party would be able to consent to the treatment of the minor. However, the court may specify a circumstance, such as consent to treatment, where the consent of both parents is required. In this situation, the burden falls on the therapist to review the appropriate documents to determine if the court has made it a requirement that both parents consent for the treatment of the minor.110

Relevant provisions include phrases such as “Mother may not unilaterally choose the health care provider for the minor” or “Both Mother and Father must jointly consent to the child receiving mental health treatment.” In a situation where such a provision exists, the therapist is obligated to comply. If the court documents are silent on this issue, whichever parent has legal custody would be able to consent to the treatment of the minor, unless the minor is able to consent on their own.11

Parents Are Adoptive
In a scenario where one or more adoptive parents are involved, the adoptive parent that is requesting therapeutic services from the clinician may need to provide documentation to support their legal right to consent to the treatment of a minor. Adoption is the process of establishing a legal parent-child relationship when an adoptive parent is not the child’s biological or birth parent. This means that once the adoption is final, the adoptive parent(s) have all the legal rights and responsibilities of a parent-child relationship..12

If in this scenario there is one adoptive parent, that person would have “sole legal custody.” The parent holding sole legal custody has the exclusive right to make the decisions relating to the health and welfare of the child. This person alone would be able to consent to the treatment of the minor unless the minor can consent on their own.

If in this scenario two adoptive parents hold joint custody, either party has the right to make the decisions relating to the health and welfare of the child. So, either party would be able to consent to the treatment of the minorunless the minor can consent of their own.

If the legal relationship of an adoptive parent to the minor is in doubt, the clinician can at their discretion request a copy of the proof of adoption. When confronted with this situation, the therapist should be aware of potential cultural and clinical issues surrounding the request.

Stepparents
In a scenario where one or more stepparents are involved, the stepparent that is requesting therapeutic services from the clinician may need to provide documentation to support their legal right to consent to the treatment of a minor. With limited exceptions, stepparents do not have any legal rights to their stepchildren unless they have legally adopted them. Because the stepparent(s) have no legal custody over the child, they are not permitted to make legal or medical decisions on the minor’s behalf, including consenting for treatment.

When confronted with this situation, the therapist should review with all relevant parties if a Caregiver’s Authorization Affidavit is appropriate. For additional resources on this topic, please refer to the article “Consent for the Treatment of Minors: Caregiver Authorization” by former CAMFT staff attorney Bonnie Benitez.

Other Relationships
The aforementioned relationship structures are not exhaustive. Other scenarios involving the use of a caregiver affidavit, wards of the courts, and emancipated minors can come into play when deciding how to proceed with a minor’s consent. For additional resources on this topic, please refer to the articles “Blue Levis and White T-Shirts,” by former CAMFT staff attorney David Jensen, and “Releasing Records in the Age of Adolescent Consent,” by Managing Director of Legal Affairs Ann Tran-Lien.

Practice tip: A therapist should not rely exclusively on the parent/legal guardian’s interpretation of their custody/legal issue. To avoid potential problems, it’s important for the therapist to be prudent and obtain copies of the documents required to establish who has the appropriate legal rights to consent to the treatment of the minor.

Consent for a Minor Who is 12 or Older
In a scenario where a minor is age 12 or older, the therapist may obtain consent directly from the minor if the consent meets the criteria specified in the law. A minor who is 12 years of age or older may consent to mental health treatment if, in the opinion of the clinician, the minor is mature enough to participate intelligently in their treatment. The standard of review is based on a reasonableness standard, so the treating clinician should document why they believe the minor meets the requirements to consent on their own.

The mental health treatment of a minor should involve the minor’s parent or guardian, unless the clinician, after consulting with the minor, determines that the involvement of the parent or guardian would be inappropriate.15  An example is if the minor is scared that a parent will be upset should they find out the minor is seeking counseling and will say no to the treatment. The clinician who is treating or counseling the minor shall state in the client record the reason that they believe it would be inappropriate to contact the minor’s parent or guardian. 

The therapist does need to be mindful that, per the law, in situations where the minor has consented to treatment on their own, the minor’s parent or guardian is not liable for payment unless the parent or guardian participates in the mental health treatment, and then only for services rendered with the participation of the parent or guardian.16 This may be more of an issue for private practices than for schools and nonprofit counseling centers.

If compensation from the minor or the minor’s parent or guardian is unavailable, the therapist may see if the minor’s health plan covers services (this depends on whether the minor has this information and whether the provider accepts insurance/is contracted with the plan). If the minor is covered by a qualified insurance plan, the therapist may avoid discussion with the main policyholder by submitting a Confidential Communications Request to the insurance company.17 If granted, the therapist may then submit the necessary documentation for reimbursement from the insurance company with only the intended policyholder’s knowledge. With the passage of AB1184, beginning July 1st, 2022, if the minor qualifies as a protected individual there may be additional options available including an alternative mailing address, email address, and phone number to protect the confidentiality of the minor’s medical information.18

In certain circumstances, the clinician may still need to get parental consent if the minor wants to use their benefits under Medi-Cal, because Section 124260 of the Health and Safety Code does not apply to the receipt of benefits under the Medi-Cal program.19  When treating a minor who is a Medi-Cal beneficiary, the therapist should contact the Medi-Cal case manager and discuss whether a preauthorization for services under the minor’s consent is necessary.

If a minor is unable to consent to their treatment because the therapist finds that they lack the necessary intelligence or maturity to participate in psychotherapy, the therapist needs to obtain consent from the appropriate legal guardian(s) (see above)

Clinical Perspective
In addition to the legal perspective, a therapist should also consider what is needed clinically to best assist a minor client. Each situation is fact-dependent, and the therapist should consider the potential benefits and risks associated with involving parents/legal guardians in the child’s treatment.

If the clinician looks at the unique set of facts and believes that it is not appropriate to include parents/guardians, they should be aware of how those parents/guardians may feel about the decision. The parents who do not get invited to the session may feel hurt or disrespected since they are unable to share their opinions with the therapist or be involved in some way. In some situations, this could ultimately lead to the client being triangulated in a dispute with the parent, thus creating a worse dynamic for the child.

If a minor (not one who is consenting to their own treatment) is discussing issues happening in the home, it may be wise for the therapist to have parents involved to a certain extent. But the therapist should be careful not to alter the unit of treatment and provide family therapy. If a minor is having problems where they need more assistance from their parent or guardian, such as suicidal ideations or eating disorders, it may be appropriate to include the parent or guardian to the extent that they can be helpful in furthering the child’s treatment.

If a parent/guardian has brought their child, and the minor meets the legal criteria to consent to their own treatment, the therapist may want to consider whether it’s appropriate to disclose very general treatment information and progress with the parent/guardian. A consultation with the minor before discussing parental involvement, if any, would be helpful in making such decisions.

A therapist must do their due diligence and understand each unique situation to be sure to comply with the legal requirements for minor consent. This requires the therapist to evaluate on an individual basis any professional relationship with a minor and their family. Before initiating therapeutic services, the therapist would be wise to review the specific minor consent laws as well as any clinical implications that may arise.


Luke Martin, MBA, JD, is a staff attorney at CAMFT. Luke is available to answer member calls regarding legal, ethical, and licensure issues.


Endnotes

1 CA Fam. Code, § 3002
2CA Fam. Code, § 3003
3 CA Fam. Code, § 3004
4  CA Fam. Code, § 3006
5 CA Fam. Code, § 3007
6 https://www.courts.ca.gov/selfhelp-parentage.htm 
7 https://www.courts.ca.gov/selfhelp-parentage.htm
8 Id.
9  Elisa B. v. Superior Court, 37 Cal.4th 108
10 CAMFT Code of Ethics Section 10.11 Custody Disputes
11 CA Fam. Code, § 3002, 3003, and 3006
12https://www.courts.ca.gov/selfhelp-adoption.htm?rdeLocaleAttr=en
13 CA Fam. Code, § 7610 (b)
14Health and Safety Code 124260 (b) (1) and Family Code 6924
15Health and Safety Code 124260 (c)
16 Health and Safety Code 124260 (d)
17As of January 2015, California law obligates health insurers to honor a Confidential Communications Request (CCR) when the CCR asks that “sensitive services” information, as defined in the law, be kept from the policyholder, or when the CCR asks for confidentiality of all health service information because disclosure of the information to the main policyholder could lead to harm or harassment. Under California law, when a CCR is submitted, health insurers must send communications directly to the insured individual noted above and not to the policyholder.
18 See AB1184. California Civil Code § 56.107 and California Insurance Code § 791.29
19 Welfare and Institution Code 14029.8