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

In M.T. v. D.T., the Superior Court, Chancery Division, Family Part in Ocean County held that the court can order a temporary medical custodianship to arrange for a child’s immediate medical care.  The court derived its power to be able to do this from the custody statute, N.J.S.A. §9:2-4.  This statute authorizes this court to enter a custody arrangement for the children.  There are three options a court can choose from.  The first is the common joint custody, where parents split legal decision-making and parenting time down the middle and work to put together a schedule for visitation.  This is the option courts favor the most.  Conversely, the second and disfavored option is sole custody for one parent over another.  The third option allows courts to create any other custody arrangement as long as it is in the best interests of the child.  Often times, in a custody determination, both parents split decision-making and parenting time as equally as possible.  But what happens when parents come to an impasse, causing a child’s medical procedure to be delayed as a result of consent lacking from one parent?  The court tackles that issue here.

The mother and father have joint custody over their son, who incurred a sports-related injury to his arm.  The father, who has primary residential custody of the child, scheduled him for surgery.  The mother filed an emergent application halting the surgery because the father never sought her approval to do it.  The mother takes her son to another surgeon, who recommends the same surgery along with an additional procedure to correct the injury not recommended by the first surgeon.  Neither can agree to which surgeon should be used, which leads the father to file another emergent application asking for full legal custody to allow him to be the only parent to consent to the son’s surgery.  The court held that because the father has already been overseeing the child’s arm injury, and the mother’s surgeon recommended the same course of action as the father’s surgeon with the additional procedure, the court should grant the father temporary medical custody for the purpose of arranging the child’s surgery.  The father, however, must provide the mother the date of surgery 10 days before it happens, and the mother must also be allowed verbal access to whichever surgeon the father chooses.

Divorce cases can be quite contentious, and animosity between the two parents is common.  Neither was represented by a lawyer. Also, neither of them communicated with the other to come to an agreement, and instead just filed applications with the court.  While this was the correct result practically, the court used its open-ended power in creating an alternate custody arrangement curiously.  Changes in custody require the court to make findings not only to show that this change is for the best interests of the child, but that a substantial change in circumstances occurred that warrants this change.  This can include a parent moving out of the state or the country.  But the court never articulated reasoning for what the substantial change in circumstances was.  Instead, it couched its decision on the health of the child remaining in peril while the parents duked it out in court.  It will be interesting to see if this reasoning takes root in our Family Part courts as it relates to a temporary shift in legal custody. Could the same issue arise in a future dispute between a court appointed guardian and the other family member?

To discuss your NJ Guardianship 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.