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SEPARATED/DIVORCED
PARENTS:
COURT-ORDERED CUSTODY ARRANGEMENTS
& THE RIGHT TO SEEK
MENTAL
HEALTH EVALUATIONS AND TREATMENT
FOR MINORS IN VIRGINIA* In
Virginia, regardless of the arrangements about physical custody,
LEGAL custody
can only be either sole or joint. SOLE
LEGAL CUSTODY:
The
parent with sole legal custody has the right to seek mental health evaluation
and/or treatment of child without consent from the non-custodial parent. JOINT
LEGAL CUSTODY:
When
parents have joint legal custody, both parents must agree
on obtaining a mental
health evaluation and/or treatment for the child.
If they do not agree, they
would need to go to court to have the judge determine
whether an evaluation
and/or treatment is in child's best interest. WHEN
IN DOUBT:
It
is recommended that, if there is any question about whether the parent initiating
the evaluation and/or treatment has the legal right to do so, we do the following:
| | When
the individual claims to be the sole legal custodial parent: | | | | o
Get a letter from his/her attorney stating that there is nothing in the
custody agreement that would prevent this individual from seeking evaluation and/or
treatment of this child;
OR
o
Get evidence in the form of a copy of the section of the legal custody
agreement verifying that this is the sole legal custodian who has the riht to
make decisions re: the child's mental health. | | | | | | | | |
When the individual claims to be a joint legal custodian: | | | | | o
Get evidence of the joint legal custody agreement (see above) AND
o
Get consent from both parents in writing. | | | | | | | | | When
the individual claims to be the non-legal-custodial parent: | | | | | o
The individual has the right to access the child's medical records o
The individual can seek emergency medical treatment only, which probably does
not include mental health treatment
o The individual can petition a court
for an order prohibiting the evaluation and/or treatment because it is not in
the child's best interest. | |
Thanks to Barry Friedman, with the firm of Thompson Hine in Washington, DC.
and Carol Schrier-Polak with the firm of Bean Kinney & Korman, Arlington,
VA *The
above relates to court-ordered arrangements about legal custody, regardless
of who has physical custody. It applies when parents with court-ordered custody
arrangements seek outpatient mental health evaluation or treatment for their minor
child. However, in Virginia, minors do also have the legal right to seek outpatient
mental health care on their own, and "shall be deemed an adult" for the purposes
of consenting to receive those services. [See Paragraph E in Virginia Code §54.1-2969.]
If a minor seeks outpatient therapy on his/her own, the provider must make a case-by-case
judgment about whether it is appropriate to work with the minor without parental
consent, or over a parent's objection. This would involve weighing the clinical
and ethical issues, and obtaining consultation about legal implications, especially
if the family is engaged in a custody dispute. HOME
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