May 31

Johnny Needs Braces: Is This a Custody or Placement Issue?

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In a previous blog post (What’s The Difference Between “Custody” and “Placement,” And Why You Should Care, 5/16/2016), I explained that certain kinds of parental decisions people make concerning their children are an exercise of their custodial rights.  I listed the six different categories of custodial decisions, and said that I would go into more detail on some of those later.  In this blog post, I am going to discuss the non-emergency medical care category.  I like to call this the “Johnny needs braces and you better pay for it problem.”

The scenario usually goes like this: assume Mom and Dad share joint legal custody, with the kids living primarily with Mom, (while it could certainly be the other way around, for this example Mom has primary placement).  Dad provides health and dental insurance for the children through his employer-sponsored plan, and the parents split evenly any uninsured medical or dental costs for the children.  Mom and Dad have been divorced for several years now, and over time Mom has taken on more and more of the routine decision-making responsibilities.  Specifically, she’s the one who makes sure the kids get to the doctor or the dentist for their regular checkups because she has the children more time than Dad, and it’s just easier for everyone’s schedule.  Mom has become used to making the appointments and letting Dad know about them later.  Dad does not put up much of a fuss.  No one knows why, exactly.  Perhaps he’s even secretly relieved that Mom is taking on more of the burden.

This works fine for everyone, but then Mom takes Johnny to the dentist for his regular check- up.  Dr. Dentist tells Mom that it is time to correct Johnny’s overbite and refers her to an orthodontist for a consult.  Mom takes Johnny to Dr. Ortho without telling Dad ahead of time.  Dr. Ortho convinces her it is time to fit Johnny for braces.  Thinking that Dad will understand that Johnny needs braces, Mom gives the go ahead.  Dad’s insurance covers $2,000.00 of the $3,500.00 bill.  Mom sends a copy of Dr. Ortho’s bill for the remaining $1,500.00 to Dad with a note asking him to return it to her with a check for his share, $750.00.  This is the first that Dad learns about the braces.  Dad becomes upset.

I’ve had clients on both sides of this issue.  I think both parents could have handled the situation differently.  Johnny and his crooked teeth are their equal responsibility.  Mom should have told Dad about the referral to Dr. Ortho, but probably thought there was no reason to do so until she knew for sure Johnny needed braces.  Then, she exacerbated her mistake by giving the go ahead to Dr. Ortho without bringing in Dad.  Perhaps Mom has become so used to making decisions for the children that she did not think that this decision was any different from other, previous decisions.  It does not matter that Dad had slowly abrogated his custody responsibilities, although that was obviously his mistake.  Getting braces is one of those major decisions, which makes it a legal custody decision.

How can we tell the difference?  The short answer is that the decision is about something that is not routine or an emergency.  For example, if Dr. Dentist told Mom that it was time to update Johnny’s dental x-rays, Mom could have immediately authorized them.  Braces, which involve a much greater commitment of time and money, are another story.  By signing the contract with Dr. Ortho, Mom has already committed Dad’s insurance resources without Dad’s input.  Perhaps Dad would have wanted a second opinion, particularly if he thought that Johnny’s teeth were not yet mature enough for braces.

The most common argument from Mom’s side is that Dad would have vetoed the expenditure.  That argument actually supports Dad, as it is a tacit admission that Mom knew that she was trampling on Dad’s joint custody rights by signing the contract for braces.  Perhaps if Dad had been given the opportunity to come to the consult with Dr. Ortho, he would have recognized the necessity to repair Johnny’s overbite.  He deserves the chance to participate in the decision.  Of course, if Dad historically allowed Mom to make the majority of the custody type decisions alone, one could argue that he gets what he deserves.

The solution to this comes down to two words: communication and consistency.  Communication must be a two way street.  Mom must make sure she lets Dad know that Dr. Dentist thinks Johnny should be evaluated for braces.  Dad must keep the lines of communication open with Mom, and treat her with respect when she does call him.  Unfortunately, communication is usually the biggest problem between parents: after all, if Mom and Dad communicated well, they might still be married.  Yet the courts expect two people who, as an old mentor of mine used to say, can’t agree that grass is green, to communicate effectively and cooperatively regarding Johnny’s braces.

It is also vital that both parents remain consistent when dealing with each other regarding the kids.  Dad cannot cry foul when Mom surprises him with the orthodontist bill when he’s paid little attention to legal custody issues in the past.  On the other hand, Mom should always try to bring Dad into the mix.  If she makes the overture and Dad ignores or disregards it, he will have difficulty justifying his indignation later.

Every situation is different, involving unique personality mixes, backgrounds, and perspectives.  There is no easy answer to this conundrum, but both parents must honestly try to work together, or poor Johnny may be stuck walking around looking like Zero from the Beetle Bailey comic strip.  If the issue for Dad is the money, and he stubbornly refuses to pony up his share of the bill, then Mom may have to file a motion with the court asking the judge to enforce her divorce judgment.  Judges have little patience for parents who refuse to pay for reasonable things that benefit their children, so in the end, Dad will likely have to cover his share of the uninsured cost for Johnny’s braces.  The real take away here is that both parents should recognize that they have an equal obligation to their children, which they must take seriously, and put aside their own agendas and do what is best for their kids.

Alf Langan

Solo practitioner attorney since 1991 based in Green Bay, Wisconsin, specializing in estate planning, family law, and criminal defense. B.A. from Northwestern University: J.D. from St. Louis University School of Law. Licensed to practice in Wisconsin, Illinois, U.S. Tax Court, U.S. Federal District Court (E.D., Wisconsin).