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Medical Consents for Minor Children Involved in Custody Orders

Article printed in the April 2017 issue of The Bar Association of Erie County Bulletin.

The information and recommendations contained in this article have been reviewed and approved as best practices by Tina Hawthorne, Esq., and Bernadette Hoppe, Esq., the co-chairs of the Practice and Procedure in Family Court Committee for the Bar Association of Erie County.

Currently, New York State health care facilities and practitioners are facing a growing number of issues involving consent for health care for minor children involved in custody matters.

At an area hospital in which thousands of elective pediatric surgeries occur every year, the staff reports that between 300-400 procedures annually involve children subject to custody orders. The orders typically do not state that the custodian(s) are empowered to make medical decisions. At the same time, the children often have parents whose rights have not been terminated. Determining who may lawfully give informed consent for medical treatment in these cases can be difficult. In one case, a custody order appointed six joint custodians without identifying which custodian would make medical decisions. Even in cases with a single appointed custodian, however, New York law does not clearly provide that a custodian may consent to medical care, which is an issue that has been raised by experts in the field of non-parent care giving (see Gerard Wallace, The Big Legal Picture: Grandparents Parenting Children: A New Family Paradigm, NYSBA Elder Law Attorney, Grandparents Rights News, Vol. 10, No. 3 at 12 (Summer 2000)).

The terms custody and guardianship are not statutorily defined. According to the Practice Commentaries of the Family Court Act, "the distinctions between custody and guardianship are elusive - and may be meaningless" (Sobie, Practice Commentaries, 2012, Family Court Act §661). Nevertheless, in some important respects, the law affords greater decision-making authority to guardians than it does to custodians.

Public Health Law §2504 refers to "parents" and "legal guardians" as persons authorized to consent to treatment of minors. Non-parent legal custodians are not listed as individuals with statutory authority to consent to such care (see also Public Health Law §18 [identifying a "qualified person" as a parent or legally-appointed guardian who may obtain clinical information about a patient]; Public Health Law §2994-e [parent or guardian authorized to make decisions about life-sustaining treatment]).

In the absence of statutory authority, facilities and providers look to the contents of a custody order when determining whether a presenting party has authority to make medical decisions. Such authority is not routinely made part of custody orders, and medical professionals are tasked with the difficult job of determining which party in a custody matter, if any, has authority to consent to medical care. As today's families become increasingly more blended, the custody orders are more complex, involving mixtures of parents and non-parents, and differing rights afforded to different parties.

Complicating matters further, in 2008, New York State enacted section 657 of the Family Court Act, entitled "Certain Provisions Relating to the Guardianship and Custody of Children by Persons Who are Not the Parents of Such Children." It authorized a person possessing either an order of guardianship or custody of a minor child to enroll such child in the school district where they reside and in the guardian/custodian's employer-based health insurance. It was silent about consents for health care.

Then, in 2010, a third paragraph was added to Family Court Act §657. It provides:

Notwithstanding any other provision of law to the contrary, persons possessing a lawful order of guardianship of a child shall have the right and responsibility to make decisions, including issuing any necessary consents, regarding the child's protection, education, care and control, health and medical needs, and the physical custody of the person of the child. . . . (§ 657 [c] [emphasis added]).

Notably, legal custodians are excluded from this third paragraph, which makes explicit the authority of a legal guardian to issue consents for medical care.

A review of the legislative history of the statute reveals that the goal was to eliminate confusion about the rights and responsibilities of guardians versus custodians.

The proposed legislation will clarify and harmonize [statutory] provisions regarding custody and guardianship of minors. . . The rights and responsibilities of a custodian or a guardian are not defined in current law. The lack of definition and seeming overlap between the meaning and effect of an application to be appointed a custodian or guardian of a child has caused confusion to parties, schools, health and medical services providers alike. Health insurance providers, school districts and medical providers have differing requirements regarding whether a non-parent must have custody or guardianship of a child to provide a child with health insurance, enroll a child in school or provide medical care and treatment. . . .(Bill Jacket, L 2008, ch 404 at 7 [emphasis added]).

It is unclear why, when given the opportunity in 2010, the Legislature made explicit the authority of legal guardians to issue consents for medical care, among other things, while not including legal custodians.

Although in practice it is not uncommon for medical providers to accept a custody order as sufficient for consent purposes, it may present a vulnerability for facilities and providers, who are necessarily concerned with obtaining proper informed medical consents. It should be noted that in emergency situations involving risk to life or health of the minor, such minor may be treated on an emergency basis without parental consent (see Public Health Law §2504 [4]). Thus, emergency care is not the focus of this discussion.

Many of the custody orders that health care facilities and practitioners are asked to interpret on a daily basis involve joint custody between a parent and a non-parent (such as a grandparent), or sole custody to one or more non-parents. Absent a clear custody order, it appears that a parent retains superior authority to consent to treatment over a legal custodian. Clearly this has great potential to lead to unintended consequences. For instance, what if the parent is impaired or unavailable? What if a parent and non-parent disagree with the course of treatment?

Absent a legislative solution, it is recommended that legal practitioners involved in custody proceedings be mindful of the issues presented here, and include language in custody orders that would control in the event of a dispute. Although New York Court Form 10-2, which is an order following temporary removal of a child, contains a checkbox authorizing the temporary custodian to issue medical consents, New York Court Form GF- 18, which is a general custody order, contains no such check boxes for legal custodians. The following suggested language may be incorporated into custody orders:

Non-parent sole custodian: {Custodian(s)} is/are authorized to give consent for medical, dental, health and hospital services on behalf of the minor child(ren).

Joint custodians (parent and non-parent): {Custodian(s)} shall have co-extensive authority with {parent(s)} to give consent for medical, dental, health and hospital services on behalf of the minor child(ren).

Including such language in court orders should simplify, clarify, and expedite consent issues for providers, hospitals, and facilities to the benefit of all parties involved. [B]

*Hawthorne and Hoppe completed their terms as we went to press.

Jesslyn A. Holbrook
jholbrook@magavern.com
(p) (716) 856-3500
(f) (716) 856-3390

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