Parenting is all about balance. You want your kids to get the help they need, but you also want to avoid overreacting to small issues that can be handled without intervention. Striking this balance is hard enough when it comes to things like education, after-school activities, choosing friends, and learning life skills. When it comes to medical decisions, however, the top priority should always be “how can I get my child the help he or she needs?”
But when you share legal custody with a co-parent – or do not have legal custody at all – medical decisions can be difficult, especially when one parent believes A and the other parent believes B, or when there is significant physical distance between you. Sometimes, these scuffles will resolve over time – but what happens when time is of the essence? What happens when you believe your child is very sick, and your co-parent does not? What happens when the decisions about medical treatment and guidance belong to the other parent, and not you?
And what happens when the State decides they know what is best for your child?
What is medical kidnapping?
Medical kidnapping refers to the forceful separation of a parent and child because the parent refuses – more on “refuses” in a bit – to accept dangerous or risky medical treatments for the child. The state may consider the failure to provide the treatments a form of child abuse or child neglect. The parent often feels that the state is kidnapping his/her child to force the medical treatments on the child. Medical kidnapping is a broad term that can also include refusing to let your child leave the hospital with you, and other types of refusals or interference with the medical care the hospital thinks is necessary.
Medical kidnapping usually happens when a parent does take their child to a hospital to treat a physical injury, or the child is suffering emotionally. The hospital then decides that the child needs medications – such as antidepressants or antipsychotic drugs, or other medications – to help save the child’s life or to avoid any permanent injuries.
About that “refusal”
In some cases, parents may choose to forgo certain medical treatments because of their beliefs. Generally speaking, the State will respect those choices, but that is not always the case.
Further, some parents may wish to forgo a treatment because they want a second opinion, or because they wish to send their children elsewhere for care. Others may not fully understand what is at stake, and deny medical treatments because they are not fully informed about what is happening.
Finally, some parents may not legally be allowed to make these decisions without input from the co-parent. In true emergency situations – life or death situations – many parents may choose to simply make a decision and let the chips fall where they may. But if the child’s life is not in danger, they may opt to deny treatment until conferring with the co-parent.
How medical advice can become an issue for child protective services
In Tennessee and other states, health care providers have a duty to help diagnose a child and treat the child. But health providers also have a duty to be aware when children are being abused or when a parent’s neglect is a sign the child’s physical or mental health is at risk.
Normally, the hospital/doctors explain the risks of the medications or treatments to the parents and wait to act until the parents give their informed consent. In emergency cases, however, or when healthcare providers have a reasonable concern, they may be required to contact a local child protective services agency. Hospitals may decide the child needs the care regardless of the informed consent. The hospital then asks child protective services to intervene and force the medications/treatments on the child. The agency may conduct a review. If they determine that the medical care is required without the parents’ consent, the agency can then ask the court to make a ruling. The judge can then (if he/she thinks the care is required) order that the parent accept medical care – or risk their custody rights and possible criminal charges.
Potential excuses for the State to intervene
Waiting too long to take your child to the doctor or ER may raise a red flag. Not giving your child a medication (even if the medication has dangerous side effects) may raise a red flag. Red flags prompt healthcare providers to contact a child protective services agency. If the child protective service agency thinks it has a “compelling state interest,” the agency may seek court approval to remove the child from the parents’ care.
How can parents facing a medical kidnapping assert their rights?
Parents can have their rights to their child questioned, temporarily removed, or permanently terminated when their healthcare decisions for their child become a concern to doctors and hospitals.
Generally, courts do recognize the rights of parents to make medical decisions on behalf of their children. Parents have the right to seek an independent evaluation. They have the right to the medical reports regarding any medical treatment for their child. If a child protective service seeks to intervene, parents have the right to introduce evidence including the opinions of other health care providers, as to why the opinions of the parents should be respected.
There are many times when agencies like child protective services should intervene such as when a child is being beaten or isn’t being fed. But the agencies can overreact and intervene when the parents’ healthcare opinions should be respected. At the Law Offices of Adrian H. Altshuler & Associates, we fight every day to protect parents and children. For help with anything that affects your custody rights, please call our office at 615-977-9370 or complete our contact form to schedule an appointment. We represent parents, spouses, and children in Franklin, Columbia, and Brentwood Tennessee.