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What happens when you want your child to undergo a medical procedure but your ex doesn’t agree with the procedure being performed? In matters of life and death, parents tend to be on the same page. But what about when it’s not life or death? What if it’s something like eye-color modification, lasik, or something else that’s purely elective? Who gets to decide whether or not the child undergoes the procedure? And, if the child does have the procedure, do both parents have to pay for it? Even if it was elective and only one parent wanted it? Well, unfortunately, the answer is going to depend on several factors—and it’s going to vary from case to case.

What Rights Do Parents Have When Making Medical Decisions?

When it comes to raising a child, parents have a lot of freedom when it comes to making important decisions about the child’s life, such as their medical decisions. For example, parents can decide whether to follow a doctor’s advice or get a second opinion. Parents may choose which treatments their child will undergo, and they may choose which doctors to take their child to. Parents also have the right to view their child’s medical records. However, depending on your state’s laws, there may be some information that parents aren’t allowed to see without their child’s consent.

What Does the Decree Say?

Before taking your ex to court, it’s probably a good idea to review your court orders. This is because some orders have a dispute resolution process which provides a final say provision that grant one parent the final say on legal custody issues such as medical decisions. The ability to have the final say is generally given to the parent who has more physical custody because they are generally more in tune with the needs and desires of the child. And, some orders don’t specify one way or the other. If your divorce isn’t finalized, or there is no custody order, there may not be much you can do when it comes to making medical decisions for your child. This is particularly true in cases where one parent does not have any legal custody. Even if your decree gives your ex the final say when it comes to medical decisions, you can still ask the court to intervene if you believe the decision would subject your child to immediate and irreparable harm. However, your decree may affect the likelihood of your success.

What’s in the Child’s Best Interests?

Courts generally want to do whatever is in the child’s best interest. For the most part, it’s in the child’s best interest to grow up in a stable and enriching environment, and have a relationship with both parents who will meet all their physical, emotional, and mental needs. The court will also presume that following the court’s orders is in the best interest of the child. If the decision is left to the court to decide whether or not a child is going to undergo a medical procedure, they’re going to look at whether or not it’s in the child’s best interest. For example, it may be more difficult to convince a judge that it’s in your child’s best interest to have braces in cases where the braces aren’t needed for anything but cosmetic purposes. However, if the child was in excruciating pain that could be alleviated, or it’s medically necessary for the child’s growth to have braces, a judge may feel that it is in the child’s best interests and medically necessary to have braces.


What Rights Do Parents Have?

Parents have no legal obligation to take their child to doctors appointments and dental appointments for routine checkups. However, parents cannot legally withhold medical care from their children when failure to do so would cause immediate and irreparable harm to the child. Certain states allow children to access certain types of medical care, such as birth control, without the consent of the parents. Not only are children allowed to get birth control without parental consent, the parents may not be able to find out about the child’s birth control. This will depend on the laws of the state you’re in. Parents can require their children to undergo treatments, especially necessary ones. This is particularly true when it comes to very young children who do not have the mental capacity to make decisions for themselves that are in their best interest.

When the Procedure Is Necessary

If a child needs a medical procedure in order to survive, a parent’s refusal to get the treatment isn’t in the best interest of the child and would threaten the child with immediate and irreparable harm. In cases where both parents oppose a life saving procedure for the child, there are still options available. For example, an emergency protective order may be granted, allowing a hospital to treat the child. If the medical procedure is absolutely necessary, particularly if it’s a matter of life and death, it would be very difficult to prevent the child from receiving that procedure.

Getting Legal Advice

If your child needs medical care, and you and your ex aren’t on the same page, having a consultation with an attorney to help evaluate your rights may help—especially if you’ve already got a divorce decree and you’re not sure what your rights are. Contact CoilLaw today to set up a consultation. 


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