My husband and his sons mother have joint legal but he has sole physical custody of four year old child who lives with us. We just found out that the child is going to need to get his adnoids removed to improve his breathing and his quality of life.
What is the problem?
Well Mom and Dad cant get along because Mom has some pretty terrible resentments for losing physical custody to Dad and Dad has issues with Mom that are pretty deep and they both should probably see a thearpist to try and work those things out. Recently hosility has gotten worse and has put everyone involved including the child through a lot of stress. Despite the bad blood between them Dad has managed to keep Mom informed through e-mail (Mom refuses to speak to Dad directly anymore about the status of Dr. apt's )in respect to the joint legal custody ruling. Now Mom wants to be present for surgery and recovery and Dad and I think that this is a bad idea because all of us havent been in the same room without anger and negativity present. Although it may sound immature Dad and I want him to be comfortable especially after a procedure like this. Mom is getting regular and continuing visitation and the surgery is not scheduled on a regular visitation day.
My legal question is that we know that she has an equal right to make desicions regarding medical treatments and to access information to important documents but does she have the right to physically attend all apts. or surgerys with Dad?

Now Mom wants to be present for surgery and recovery and Dad and I think that this is a bad idea because all of us havent been in the same room without anger and negativity present

Why don't you stay away during the surgery and recovery to cut back on the negativity so MOM can be with HER son during this time.

Well I have been a part of his life since birth (day one) so my presence is not what is upseting. Mom's relationship with me is not the problem because we dont have one. I am not the basic "other women" in this senaro. Mom and Dad had a one night stand and I met Dad when she was five months pregnant and we have been together ever since. Obviously a lot more to the story but I am not her enemy nor ever was her competition. Besides even though I didnt give birth to him I feel that he is just as much mine as he is hers because I have watched him grow since infancy and now I raise him with his father, she seems to only be Mom by title now and that is all.
Back to the legal question..
Does she have a right to be physicaly present at apt.'s or surgerys?

Does she have a right to be physicaly present at apt.'s or surgerys?


Yes, she does. She is his Mother.

Is there any legal standing to support that answer? If there is could I get that information? I am not asking for opinons I am looking for legal advice. I understand that she is his birth mother but that isn't a good enough answer. I know plently of fathers that are denied so much and never heard anybody stick up for them and say that they deserve something just because they are the father, more like any boy can make a child but it takes a man to be a father. It is such a double standard. :mad: Dad has physical custody because Mom is unfit and couldn't raise the child.

If you are looking for a law that says "a birth mother may be with her child when he has surgery." it doesnt exist.

If your spouse feels that it will be harmful to the child to have the mother there, he can try to get a court order but you are going to have to have some really compelling reasons to keep a mother away from a sick child when they both have joint custody.

Short of a court order, its going to be hard to say she cant be there for her child when he has surgery. The physicians are going to make the best decision for the child if there are problems. You, with no legal standing would be the first to go. The decision of who stays between father and mother may be based on behavior of both parents at the hospital and the child's wishes.

I cant see a physician or nurse tell a crying child who wants his mom that she cant be there if she is causing no problems.

Maybe all the "grownups" need to has this all out ahead of time?

They dont have joint custody... they have joint LEGAL CUSTODY and Dad has SOLE PHYSICAL custody. The child is not sick and he never cries for Momma I think that you are reading way to much into that and I am pretty sure that Doctors and nurses cant make a CUSTODIAL PARENT leave the hospital when his child is there being treated.
Again anybody with any legal insight would be greatly appreciated.
Legal custody in our order only states updates on medical, updates on apts., equal desicion making rights, and access to information. Nothing about the right to be present. Believe me we are not doing this for our benefit it is for the comfort level of everyone, especially the child.

Fine, good luck.

Anybody else have any legal advice not personal advice on my original post?

They dont have joint custody... they have joint LEGAL CUSTODY and Dad has SOLE PHYSICAL custody. The child is not sick and he never cries for Momma I think that you are reading way to much into that and I am pretty sure that Doctors and nurses cant make a CUSTODIAL PARENT leave the hospital when his child is there being treated.
Again anybody with any legal insight would be greatly appreciated.
Legal custody in our order only states updates on medical, updates on apts., equal desicion making rights, and access to information. Nothing about the right to be present. Believe me we are not doing this for our benefit it is for the comfort level of everyone, especially the child.

If this is the way that the court order reads, she has an equal decision to be at the hospital. If your husband wants that changed, he will have to file for a modification and that will take time and money.

In this case, I think it's time everyone put on their big kid panties and try to have a civil moment for the sake of the child.

The doctors and nurses will not boot a non-custodial parent from the premises without a court order restricting access and this is why: it is surgery. This kind of surgery carries inherent risks related to blood loss, airway obstruction complications, and anesthesia. Should something go wrong during the surgery, BOTH parents would need to make decisions since they BOTH have legal decision making powers. There are legal releases that need to be signed and if anyone has a legal position to consent to the procedures, they need to be there.

Now you can take this to court, however, without a sound reason to keep the mother away from the hospital, you're going to end up wasting money to look foolish in front of a judge who may end up deciding it's time to revisit the custody issue. I don't think you want that. I also don't think you want the court to see you wasting that kind of time when the child apparently needs this medical procedure. Could you justify delaying needed treatment? Is the mother a risk to the child's safety? Has she tried to abduct the child? Is she on drugs? Is she violent?

If not, please see my first statement.

I doubt that having a one night stand was anyone's ideal circumstance for bringing a child into the world. For the sake of the child, put your differences aside for a couple of hours and just let the mother be there if she wants to. You're causing yourself more headaches than the situation warrants.

If this is the way the mother has been treated all this time, it's no wonder to me why the relationship is strained.

Mom had the child for three years and would not let the child and his father have any sort of relationship even though Dad tried and paid child support religiously. Mom treated Dad like a criminal because Mom is mentally ill (bi-polar, borderline personality disorder, and a alcoholic) and neglected the child and had the State take him away from her and that is how we got him. We are not worried about losing custody to a person like her besides she gets her court ordered visitation and we comply with our order to a T. She is treated by us better then she deserves after all she has put the child through.
The relationship is strained because SHE is refusing to collaberate and communicate within the childs best interests with us. Since his placement with us we have been more then willing to and have made several attempts to attain a positive relationship with her for the childs sake and she is stubborn and sick. I am only saying this because I think that most of you have the wrong idea about our stance on the issue. Oh ya and FYI this condition that calls for the surgery has been over looked by her since his birth due to the neglect he suffered under her care. Anyway I did read the order incorrectly. No where does it even say that she has decision rights, just the right of access to and receive copies of important documents regarding health, education, and dental. Under a seperate catagorey it reads that Petitioner (Dad) must keep respondant (Mom) updated and educated on all apts. involving the child. Which Dad has done his best but it is hard when Mom wont even pick up the phone and speak to Dad. Believe me we wish that she would have grown up since the day he was born and all we can do is continue to hope that she does. Maybe between now and then things will be different.

All that is fine and good but if she still has legal decision making power, she has the right to be there if she chooses to do so.

BTW, I understand all too well about mental illness/addiction and custody. That's why I have Little Bit.

Where exactly are you getting the "joint legal custody" terminology? You mentioned that early on, but now you say that the document does NOT give her joint decision making power......... please clarify if you want true legal advise.

I have found that most of the more experienced folks on this site (that would include those who have been around and seen more than myself) will in fact give you good advise on the legal aspects, but they can only do so if you give them precise information about your court order.

The temptation here is to tell you that regardless of this surgical procedure issue, your husband may want to file for a modification if the woman is indeed this difficult on decision making, this unstable, etc..... However, it's not really clear from your posts exactly what rights she does have in the court order.

Best wishes,
Amy

OP..if he was to have surgery on HER scheduled day...would you insist on being there? Of course you would! Yet you want to deny the MOTHER her right to be there for HER son.

I know its confusing and I apologize that I didnt get the terminology right in my first posting. The order reads joint legal custody and then it elaborates to say pursuant to Minnesota statue 518.17 sub 3., Each party has the right of access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the minor children. Each party has the right of access to information regarding health or dental insurance available to the minor children. Each party shall keep the other party informed as to the name and address of the school of attendance of the minor children. Each party has the right to be informed by school officials about the children's welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference for each party. In case of an accident or serious illness of a minor child, each party shall notify the other party of the accident or illness, and the name of the health care provider and the place of treatment. Each party has the right to reasonable access and telephone contact with the minor children. The court may waive any of the rights under this section if it finds it is necessary to protect the childs welfare.
My interpretation of this part in the order is that she can get all the info. and attend school confrences but has no decision making power. If she did wouldnt it be sighted? Also I thought at first she did because the research that I have done outside of our order would suggest that equal decision power in joint legal but it is no where written in the order. Sorry for the confusion :) Anyway, for those people that are trying to pull on my heart strings over her being his mother and my step son being her son it's a waste of time. Again just because she gave birth to him and then proceeded to neglect and abuse him for the short time he was on the planet obviously doesnt make the women a mother just an incubator.

OP..if he was to have surgery on HER scheduled day...would you insist on being there? Of course you would! Yet you want to deny the MOTHER her right to be there for HER son.

Since my husband has sole physical custody of the child then I would have to say yes because he is the MORE responsible parent. Also we are very accomadating to her visitation schedule and respect it that is why we did not schedule the surgery on a visitation day to ensure the little time they have together is not interrupted.

Your first part says what you need to pay attention to; Joint legal custody

The rest of it is there for basic examples of what each are entitled to have. There is no where in what you wrote anything prohibiting her from being at the hospital if that is what she chooses to do. In fact, where it says: "In case of an accident or serious illness of a minor child, each party shall notify the other party of the accident or illness, and the name of the health care provider and the place of treatment." shows that if there is treatment needed, both parents are to be notified about the particulars, thereby opening the door for both parents to be there. This statement is followed by a section pertaining to reasonable access. A court would consider allowing the non-custodial parent access during surgery to be reasonable.


Your only chance at keeping her from being there is to file a motion (with appropriate evidence) and having the court consider this next part: "The court may waive any of the rights under this section if it finds it is necessary to protect the child's welfare."

If you are unable to prove she is a danger to the child at this time, your chances are slim to none at keeping her away. No matter what your intentions are.

Physical custody only pertains to where and with whom the child lives.

Your first part says what you need to pay attention to; Joint legal custody

The rest of it is there for basic examples of what each are entitled to have. There is no where in what you wrote anything prohibiting her from being at the hospital if that is what she chooses to do. In fact, where it says: "In case of an accident or serious illness of a minor child, each party shall notify the other party of the accident or illness, and the name of the health care provider and the place of treatment." shows that if there is treatment needed, both parents are to be notified about the particulars, thereby opening the door for both parents to be there. This statement is followed by a section pertaining to reasonable access. A court would consider allowing the non-custodial parent access during surgery to be reasonable.


Your only chance at keeping her from being there is to file a motion (with appropriate evidence) and having the court consider this next part: "The court may waive any of the rights under this section if it finds it is necessary to protect the child's welfare."

If you are unable to prove she is a danger to the child at this time, your chances are slim to none at keeping her away. No matter what your intentions are.

Physical custody only pertains to where and with whom the child lives.
Thank you that actually answers a lot of my questions, although it does seem very vauge since the condition that requires the surgery is not an "accident, injury or serious illness" but again vauge. Which she has been notified of condition and place of treatment. Anyway it was truely shocking when we read the joint legal part, we were most surprised because even the GAL didnt think that it was in the childs best interest that Mom have any custody because she knew how difficult it was to work with the her. The judge totally blew us away :(
Again hopefully things get better and we all have issues that we need to work on and if the communication doesnt get better on the child maybe it would be a good time to go back to court.

Kris I have a very similar situation with my husband's ex-wife and my stepdaughter. His ex doesn't have unsupervised visitation at all, ever but she would still be entitled to be at the hospital if my stepdaughter were having surgery. But you can bet any amount of money I wouldn't be sitting with her in the waiting room. I would explain the situation to the hospital staff and make sure they had two different areas that we could wait. It sounds petty but I don't need to deal with his ex's issues when I would be worried about my stepdaughter having surgery. Focus on your stepson, not on her. Ignore her presence.

On another note, from my experience in dealing with someone with BPD (mine is also a Borderline who is drug addicted), I know it is difficult. The more you challenge them on something, the more they enjoy it. If you don't engage them, don't respond to their threats, and generally ignore the crazymaking, they lose interest. If you want to build a stronger case against her, only allow email communication. This develops a paper-trail of evidence to show how unreasonable that person is being. In your responses to her, be clear, concise, and unemotional. Type it as if you are forwarding a copy of it to the judge.

Don't give the Drama Mafia any ammunition against you. You already know how everything you say gets twisted around. In black and white, there can be no twisting of your words or intentions. Right now, if you are fighting her on this, it's almost a guarantee she will show up.

Thanks for the advice. It is very difficult to communicate with her and we were forced to recently end e-mail communication because she argues and harrasses as if we are talking with her face to face. I mean like 7-8 crazy e-mails on a daily basis and usually unprevoked! The e-mail communication was not constructive and seemed to stun any growth we possibly could make. It is very discouraging and so hard on my step son we had to end it for his sake. We do have copies of the e-mails and will keep them. We are actually ordered to attempt medation first, then expiditor, then court and we deceided instead of working on building a new case (since our case was air tight) we try and work on building a decent relationship with her (despite our opinon of her) for the childs sake. Its hard when she doesnt seem to understand the impact of her actions on the child with all the negativity that is created for no reason. But you said it best with the fact that she feeds off of it, and by responding to the e-mails she was enjoying it. Maybe if we welcome her to the hospital it wont be fun anymore and she wont come. Thanks again!