Avoiding Liability Bulletin – February 2008

… How is the term “joint custody” defined in the statutes governing family law matters (e.g., child custody and/or visitation) in the state where you practice? Does the term refer to physical custody, legal custody, or both? Why does it matter? In answer to the latter question, it matters because proper parental consent to the treatment of a minor and a valid parental signature on an authorization form may depend upon the meaning of this term, if it is specifically defined in a particular state’s statute. There may also be other related terms that bear on the answer to the latter question – such as legal custody, physical custody, joint or sole legal custody, and joint or sole physical custody.

In one state, the term “joint custody” means joint legal custody and joint physical custody. In that state, “joint legal custody” means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of a child. This does not mean that both parents must sign an authorization form to release information pertaining to the minor’s treatment, for example, but rather, it means that either parent can sign the authorization form. Likewise, either parent may consent to treatment. Of course, the court order may specify otherwise – such as, that the authorization or consent of both parents shall be required for certain actions.

In that state, the term “joint physical custody” means that each of the parents shall have significant periods of physical custody. The law specifies that joint physical custody shall be shared by the parents in such a way so as to assure a child of having frequent and continuing contact with both parents. Generally, physical custody does not entitle a parent to consent to treatment or to sign an authorization form on behalf of the minor. Those issues are resolved, in the state being discussed, by determining the “legal custody” arrangement.

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Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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