Continuing Education & Resources for Mental Health Professionals

Virginia Legal Information

Rights of Separated/Divorced Parents to Consent to Mental Health Services for Minor Child

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, ask to see the actual court-ordered custody agreement to determine whether the other parent must be notified if one parent seeks mental health services for the child, and/or whether they must both agree about obtaining mental health evaluation and/or treatment. In some cases, depending on the custody agreement, parents who disagree can have a judge determine whether mental health services are in the child’s best interest.

WHEN IN DOUBT ABOUT A PARENT’S LEGAL RIGHTS:
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 recordso 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.

WHEN IN DOUBT ABOUT ETHICAL OR PROFESSIONAL ISSUES
Ethics texts recommend making it a rule to involve both parents whenever mental health services are being provided to a child. Even if one parent lives far away, it is possible to obtain written consent and gather information from that parent by phone. Doing so can often prevent the absent parent from later objecting to the mental health services, becoming angry about being ignored, or complaining to the licensing board about the professional’s conduct. Exceptions to this rule may be necessary if the parent is inaccessible, unwilling to participate, or guilty of abuse or neglect and his/her involvement would be harmful to the child.

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
for initial versions of this document

*This relates to court-ordered arrangements about legal custody, regardless of who has physical custody of the child. It can apply as described when parents seek outpatient mental health evaluation or treatment for their minor child.  However, in Virginia, minors also have the right to seek outpatient mental health treatment on their own, without parental consent, and “shall be deemed an adult” for the purposes of consenting to receive those services. [See 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.

2009

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