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Aug 27 2015

Treating children of divorce: Obtaining custody documents and setting clear ground rules are key

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Currently over 1 million children experience divorce each year and up to 61% of children in this country will experience their childhood in single-parent homes. The process of separation and divorce strains relationships and erodes communication. The negative emotions associated with this can impact professional relationships within the healthcare setting. The licensee who cares for minor children will likely have to manage some aspect of the controversies attendant to divorce and separation. Licensee entanglement in the legal battles that erupt is not unusual. Review of complaints against licensees presented to the NCMB confirms this.

In this article, I’ve attempted to address some of the administrative challenges that may arise in the office in high conflict scenarios. Intensified relational dynamics typically characterize the first two or three years after separation/divorce. Much of this resolves after this time. There is, however, a group of parents (eight to 15%) for whom conflict continues for years after divorce. Licensees caring for minor children in the primary care setting as well as other areas of specialization would benefit from formulating strategies to manage the fallout of these bitter interactions. It is important to note that these dynamics not only negatively impact the physician-patient care relationship but also the administrative staff who are most often the front-line negotiators of parental hostilities.

The American Academy of Pediatrics position statements provide insight and guidelines for addressing the emotional, developmental and physical needs that arise in divorce and separation. However, there is little mention of strategies for assisting practices and institutions in mitigating risks that stem from high conflict scenarios.

Careful consideration and development of a systematic response is warranted and can be extremely important to licensees. Consider the following malpractice case reviewed recently by the Board:

Case Study: Appropriate care, inadequate consent
The Board received a malpractice payment report regarding a payment made on behalf of a board certified pediatric specialist with no prior history of actions against his license. The licensee was successfully sued by a parent in spite of having provided medically relevant and appropriate care to the minor child. The patient was brought in for care by the father, who had physical custody and shared legal custody. The setting was one of ongoing conflict after an extremely contentious divorce. The clinician was consulted by a major academic center to assist in supporting the psychological needs of the patient. Care was arranged by the father and assumed by the clinician to have been confirmed with the mother. Care was delivered over a two-year period. Records documented that the child did well under the physician’s care. Review of records confirmed competent and appropriate care of the patient. However, the licensee was accused by the mother of being a biased advocate. The physician’s clinic notes were used to support the mother’s case. The Board determined that there was no violation of the Medical Practice Act involved in the case and no board action was taken. However, because a payment that met criteria established by state law was made on the physician’s behalf, the payment is public information. As a result, there is now a public malpractice payment reported on the licensee’s information page on the NCMB’s website.

Practical guidance on protecting your practice and avoiding problems
Conversations with local attorneys familiar with high conflict divorce dynamics and a review of complaints presented by custodial and noncustodial parents to the Board suggest the need to support licensees with practical advice on managing these cases to mitigate potential risks.

One of the first steps for a medical office is to ensure that the practice has access to all relevant legal documents that state the terms of custody and care of the minor(s) involved. Parental and custodial relationship disclosure should be standard for all pediatric patients. In shared custody arrangements, documents should be requested from both parents. If parents are unwilling or unable to provide copies, these documents can also be obtained from the Clerk of Court office that has jurisdiction over the case. These are public documents and are available if the case number is provided. To ensure consistent access to custody documents, there may be benefit to using the Clerk of Court as the standard source of custody information. Front office staff should be informed of the importance of obtaining custody documents and trained to request and maintain them.

I offer the following advice, based on more than 25 years of pediatric practice in academic and private practice settings:

    Establish terms of custody: Custody may refer to both physical and legal rights. The decision to treat a minor child based on input of one parent in the setting of joint legal custody should be based on medical necessity and be clearly documented in the record.

    Set office policies: Develop standard office policies for obtaining information on custody arrangements for all new patients prior to establishing care. Clarify marital status and gather all addresses.

    Use a healthcare contract: Develop a written, signed informal contract that states the parents’ commitments regarding healthcare decision making for the patient and communication with the office. This may be used as a reference point when conflict arises. It is not intended to be a legal document, but rather to serve as a behavior contract.

    Be proactive: Once conflict is identified, declare a timeout. Attempt to meet with parents separately or together to present the practice’s position and outline policies regarding authorization for treatment and other matters.

    Set clear boundaries:
    Avoid playing the role of peacekeeper. Your focus should be on your patient and avoiding barriers to quality patient care.

    Remain neutral: Avoid being pulled into the dynamic of acting as a character witness - no taking sides. If there is clear evidence of abuse or neglect, document, follow the law and report or refer to appropriate community agencies.

    Set clear goals:
    For example providing quality care with minimal disruption of normal office workflows and mitigation the risk of litigation or other unfavorable action on the part of a disgruntled parent.

    Establish consequences: Clearly inform parents of the possibility of patient dismissal from the practice early in communication if there is evidence of unwillingness to accept boundaries. The priority of rendering good care cannot be achieved if there is no agreement on the process by which this is to be done. The responsibility for this rests with the parents.

    Understand the legal process: Clinicians may be called to testify as a fact witness or an expert witness in custody or other legal proceedings. A fact witness is generally used to establish matters such as a parent’s level of concern regarding the child, and general observations of the pediatrician of parental dynamics, while expert witnesses typically provide information solely on medical facts and aspects of medical care. Fact witnesses may not receive compensation for their time unless there is a contract specifying that time will be compensated. It may be prudent to include a standard statement in your policies that the parent agrees to compensate for services should a subpoena be issued, regardless of the licensee’s designation as a fact or expert witness.


These points should serve as general guidelines for developing individualized protocols depending on the unique needs of the practice. The sooner a practice develops clear policies, documents and procedures for handling cases involving shared custody, the better protected and prepared its providers will be.

The suggestions I’ve presented above are certainly not exhaustive, however, they highlight major areas that should be addressed as individual offices and programs develop protocols.

I welcome feedback and suggestions that might be helpful to share with colleagues regarding this challenging subject.

Send comments to forum@ncmedboard.org

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