Wednesday, September 30, 2009

A non-custodial parent not a potted plant

First off, a caution. From what I read in New York Divorce and Family Law Blog's A Non-Custodial Parent Retains Authority in Decision-Making: Dad is not a Potted Plant I think the case has to be read narrowly rather than broadly

Judge W. Dennis Duggan dismissed a contempt proceeding, against a non-custodial father who had changed the dosage of his fifteen-year-old daughter's medication during his parenting time. The father, a doctor, believed that his daughter’s prescription was inappropriate.

Judge Duggan stated that "While it is the general principle that the custodial parent possesses the sole authority to make medical decisions for her child, this does not relegate a non-custodial parent to the status of a potted plant."

. . . .Furthermore, he stated that the parent who is caring for a child, whether or not he has sole custody, "has a residual authority to make decisions in the child's best interest that are called for by the immediate circumstances--even if those decisions might overlap with or intrude upon the other parent's 'sole custody' authority.

Rather than unilaterally taking it on himself to change the prescription, the father, with the benefit of hindsight, probably would have been better off, at least demonstrating that he, at least, consulted with the mother and the child’s treating physician before unilaterally acting. That said, over-medicating a child is an exigent circumstance, requiring immediate action.
Read that last paragraph closely.  Exigent means "requiring immediate aid or action <exigent circumstances>".  Think emergency.  Do not think run of the mill, ordinary matters.  I think any judge in any state would find it hard to find a father acting in his child's best interests in preventing harm to child where there is an emergency needing immediate action.

As for non-custodial parents, common sense and common decency lead me to think that father was wrong in not calling mother. Surely, they both had cell phones.  Sounds to me they need to read the articles on how to deal with one another post-dissolution that I have been publishing this month.

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