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Parental Divorce and the Minor Client-- Avoid These Common Mistakes

Updated: Aug 30, 2023

Minors and Consent for Treatment

Written by Leslie S. Tsukroff, MSW, LCSW

Founder and Executive Director of Leslie S. Tsukroff, Inc.

Case Scenario: Parent A calls Clinician seeking services for their minor child. Parent A mentions that they are divorced from parent B and parent A “has custody”. The clinician schedules the initial appointment during which they meet with parent A and the minor and parent A signs all of the clinician’s paperwork. 6 weeks later, after seeing the minor 5 additional times, parent B sends the cli

nician a “cease and desist” e-mail, noting that they did not provide their consent to work with their minor child.

One of the most important factors when working with minors whose parents are divorced, separated or divorcing is determining who has the legal right to provide consent for treatment. Oftentimes mental health professionals, like the clinician in our scenario, mistakenly believe that the parent who makes the initial contact has the right to consent. While other practitioners assert that the parent who pays for treatment, has primary residential custody or who holds the medical insurance is the only one who has the right to consent to treatment. These assumptions are often incorrect.

The legal right to consent may be determined by a variety of factors including but not limited to state law, the age and status of the minor, or the parents’ legal custody arrangements as outlined in the divorce decree or through a separate court order. Many courts differentiate between residential and legal custody. Residential custody refers to the child’s address of record, while legal custody refers to the person(s) who holds the right to make legal (including medical) decisions concerning the minor child. When working with minors, it is risky to assume that only one parent has the right to provide consent for treatment or that only parents have the right to consent. In circumstances in which both parents share joint legal custody, both parents may retain the right to consent to or to oppose mental health treatment for their minor child. Additionally, grandparents, guardians, the state or the minor themselves may hold the legal right to consent to treatment.

Tips for those working with minors whose parents are divorced, divorcing or separated

Since it is the clinician’s responsibility to verify who holds the legal right to consent to treatment, it is best practice for clinicians to:

Ask about the parents’ marital status and custody arrangements during the initial contact.

Request written documentation (divorce decree, court order, custody declaration) before meeting with the minor.

Determine who holds the legal right to consent.

Obtain written consent of all parties who have the right to provide consent.

Research state laws regarding minor’s rights, including age of majority (which varies widely and is state specific).

Weigh the clinical, ethical and legal impact of providing services to minors without the written consent of all parties who have the right to provide consent.

Document your rationale for beginning/continuing services without consent from all parties legally authorized and entitled to provide consent.

© Leslie S. Tsukroff, Inc. 2023 (All Rights Reserved)

This article originally appeared in Leslie’s October 2022 Newsletter

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