Decision making tug-of-war: How is the decision made?

In a recent decision, a New Jersey family court resolved the question of what happens when two divorced parents with joint custody of a minor child are unable to reach an agreement regarding important decisions related to the child’s health.

In M.T. v. D.T., the parties were divorced in 2015 following a 23-year marriage, from which three children were born.  As part of their divorce settlement agreement, the parties agreed to joint and equal custody, with neither parent being designated as the parent of primary residence (“PPR”).  Following their settlement, the parties entered into a consent order reflecting their shared-custody arrangement, which required the parties to advise one another of the children’s health-related issues and medical appointments

The dispute before the court related to the parties’ 16-year-old son, who hurt his arm and elbow in a sports-related injury.  The first orthopedic surgeon consulted recommended non-emergent surgery to relieve the teenager’s pain.  The child’s father scheduled the surgery without obtaining mother’s consent.  Mother filed an emergent application with the court ten days before the surgery on the grounds that her ex-husband scheduled the surgery without informing her or obtaining her consent.  In making her application, mother alleged that she had insufficient information related to the injury and wanted to seek a second opinion.

When heard by the court, father represented that the parties’ son spent a majority of time with him and that he had accompanied the teenager to his medical appointments since the divorce. The court entered an order directing that the parties have the opportunity to reach a consensus regarding their son’s medical treatment.  Mother met with the surgeon and voiced concerns over the procedure, which resulted in the surgeon cancelling the surgery.  Concurrently, mother consulted with a second surgeon without her ex-husband’s participation.

While the second surgeon agreed that the surgery should take place, there were differences between the two proffered surgical approaches.  The first surgeon consulted proposed a more conservative, limited approach than the surgeon consulted by mother.  The parties each agreed with the surgical approach proffered by the surgeons with whom they had individually consulted, and thus could not come to an agreement on which surgery their son should receive.

Shortly thereafter, father filed an emergent application, alleging that his ex-wife was delaying the teenager’s treatment by preventing the surgery proposed by the first surgeon from taking place.  In making this application, father sought full legal custody of their son, including the right to make medical decisions on his behalf.  Each surgeon participated in a telephonic conference to set forth their respective surgical techniques.  Neither surgeon objected to the reasonableness of the other surgeon’s approach.  Therefore, the court found that either surgical option was medically acceptable and no more prudent than the other.  Because the parties remained at legal loggerheads, the court was required to break the impasse and decide the matter so that the child could receive timely medical treatment.

The court noted that under New Jersey’s custody statute, in any proceeding involving the custody of a minor child, the rights of both parents are equal and there is no gender-based presumption that a mother or father has any greater or less ability to oversee the health and medical needs of their mutual children.  Any distinction between each parent’s comparative ability to tend to the medical needs of a child must be based, the court held, on the unique, fact-sensitive circumstances of a given case.

The statute provides three options for resolving custody disputes.  The court could award joint custody or sole custody (plus visitation to the noncustodial parent).  A third but less exercised option permits the court to enter any other custody arrangement which may be in the best interests of the child.  The court noted the state’s general public policy preferring joint custody, so favored because it encourages divorced parents to share in the rights and responsibilities of child rearing.  Under joint legal custody, decision-making authority for a child’s welfare belongs to both parents, irrespective of the actual living arrangements.  However, for joint legal custody to serve the best interests of the child, the court opined, parents must have the ability to cooperate with one another.  The court found that in scenarios where the parents cannot come to agreements regarding the child’s welfare, an alternate legal custody arrangement may be appropriate.

Noting its duty to consider the needs of the child in making a custody determination, the court acknowledged that the child has two important needs implicated in the scenario: the need for physical health and the need for functional parents to cooperate with one another and serve as positive role models.  Furthermore, the court stated that when parents’ rights and the child’s rights are both at issue, the child’s best interests must prevail.

To resolve this dispute, the court invoked the rarely used third option for legal custody set forth above , which allows the court to enter any custody arrangement which may be in the best interests of the child.  Here, the court retained the general status of the parents as joint legal custodians, but afforded father temporary authority to serve as medical custodian, for the limited purpose of arranging for the child’s surgery and care relative to his arm and elbow.

Acknowledging that both parents were fit for the role of temporary medical custodian, the court highlighted the fact that the child’s medical care was primarily directed by father prior to this dispute and that the teenager spent significantly more time with father than mother.  The court reasoned that any medical needs related to the surgery would most likely take place while the child was residing and/or convalescing with his father. 

While affording father the status of temporary medical custodian, the court warned that this did not give father the right to keep his ex-wife “in the dark” as to the child’s medical status. As temporary medical custodian, father had a duty to keep the child’s mother apprised of all scheduled appointments and information related to the child’s injury, surgery and medical care. The court further cautioned that this solution was limited in scope and duration and should not affect the parties’ existing statuses as joint custodians. The fashioned remedy,  meant to break a stalemate on a discrete issue related to the child’s welfare, sounds in equity and was therefore uniquely tailored to the specific facts of the case.

This case provides insight to divorced parties with joint legal custody who may face difficult decisions related to the welfare of their children.  Importantly, this case shows that legal custody is not an all or nothing right. One instance of parental deadlock may not necessarily put one parent’s status as legal custodian at risk – there are short-term, hybrid solutions available to the courts to shape a remedy to the specific circumstances of a given case. Rather than taking an aggressive approach and requesting sole legal custody as father did, an applicant seeking judicial intervention may seek a temporary remedy which would give one parent final authority on a specific, significant event in the child’s life, such as a decision related to a surgery. However, courts will remain reluctant to play tiebreaker for minor disagreements – it is always better to make a good faith effort to cooperate and come to a consensus before seeking relief from the court.

Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or