Choosing a medical treatment is a tough decision for most people. It becomes even more difficult if the treatment is for a loved one. For any parent, there is nothing more terrifying and painful than the feeling that you cannot help your child. This is compounded if your child is ill, and there is nothing that you can do to make your child better. Imagine, however, that there is something that you can do, but your ex is preventing you from taking steps that will help your child.
Imagine this scenario:
You and your ex have two children. One of your children has been diagnosed with a serious medical condition that requires expensive and experimental medical treatments. Your child’s physician tells you that without the treatments, your child’s condition is life-threatening. The physician also tells you that the treatments have a 33% chance of helping your child. Unfortunately, your ex and their new partner believe in “the power of prayer” and believe that if your child is meant to get better, then God will make your child better with prayer. Your ex has sole legal and physical custody. What can you do to help your child to receive these medical treatments?
Types of Custody:
In Massachusetts, there are four different types of child custody arrangements. In some cases, parents can make their own arrangements. The judge will determine what parenting plan is in the best interest of the child or children. Sole legal custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Sole physical custody means that a child lives with one parent and is subject to reasonable parenting time by the other parent. This is unless the Massachusetts Probate and Family Court judge decides that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child.
Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about children. The court evaluates the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.
What can be done?
When a substantial and material change in circumstances exists, one party may move to request that the court modify the current child custody arrangement. Because of this, the father from the example above may request that the court award him legal custody. This would allow him to make the medical treatment that he believes are in the best interest of the child. A court would likely evaluate the child’s best interests through the lens of the child, not the lens of the mother’s boyfriend’s religious beliefs. The court would likely modify the custody arrangement. This would thus allow the father to make the sole medical decisions for the child. The court would not consider the mother’s boyfriend’s religious beliefs. This decision is between the parents, the court, and the child and is only about the child’s best interests.
Suppose instead that another party—not a parent—wants to challenge custody using the facts above. For example, could a grandparent, a school, or a Guardian Ad Litem challenge the religious beliefs of the parents if the other party believes that the parents are not acting in the best interest of the child? The answer…yes and no. Another party may challenge the beliefs of the parents through a protective services agency, via parens patriae. However, a Massachusetts court would not take this power away from the parents if the treatment were so experimental so as to provide no chance at saving or helping the child. A Massachusetts judge would need to decide what is in the best interest of the child when making such decisions.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.