By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship and Health Care Directive Attorney

An Ocean County judge has ruled that a Court can appoint one parent as a child’s temporary medical custodian even though the divorced parents have a joint custody agreement, whenever an impasse occurs over their child’s medical treatment.

Superior Court Judge Lawrence Jones appointed the father as temporary medical custodian in a case where the parents could not agree on which type of operation their son should have or which surgeon should be used to address a sports injury.

Jones noted that New Jersey’s custody statute requires a court to consider various factors relating to custody arrangements, including the child’s health.

In appointing a temporary medical custodian, Jones said that “in cases of separation and divorce, a child’s needs are more important than that of either parent. The legal principle is known as “parens patriae jurisdiction”. When presented with a choice between parents’ rights and children’s rights, the choice is and must be the children’s welfare and best interests.”

The ruling does not disrupt the parents’ status as joint custodians, but gives the father authority over the child’s immediate medical needs, the court said. The father was chosen because his home is where the child spends most of his time and because the father would have primary duty for caring for the child during recovery.

“When divorced parents cannot otherwise agree, and when a surgeon is performing surgery on a child, the surgeon logically needs to obtain parental authorization and direction from a designated representative in a clear, unambiguous, and consistent manner. In this case, [the] same is not likely to happen unless the court designates one parent as the child’s temporary medical custodian … for the limited purpose of securing treatment for this particular injury,” Jones said.

The medical custodian is obligated to keep the other parent informed about the child’s treatment and appointments and must give the other parent notice by email, 10 days in advance, of any surgery, Jones said.

Jones ruled after holding a hearing where both surgeons participated by phone. He concluded that “the distinction appeared to be wholly one of valid professional discretion, with no objectively discernable ‘right’ or ‘wrong’ answer from a medical standpoint.”

Each doctor agreed that the patient needed to undergo an ulnar nerve relocation. The difference came down to a recommendation by the second doctor for an additional step, the shaving down of a small piece of the elbow bone, while the first doctor said that step was not necessary.

Neither party had an attorney in the case, M.T. v D.T.

Some family law attorneys have commented that would have preferred for the judge to appoint an impartial expert to decide which course of medical treatment was best, rather than to make the decision himself.

The takeaway from the decision suggests that divorcing couples may benefit from including a mechanism in their divorce settlement that spells out how to resolve disputes over issues such as their child’s health care or education. Such agreements are often in a settlement for divorcing couples who find it difficult to communicate, he said.

To discuss your NJ Guardianship and Health Care Directive matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.