The Hon. W. Dennis Duggan of the Albany County Family Court recently held that a non-custodial parental still retains parental decision-making authority even when that parent is not empowered to make decisions regarding the health, education and welfare of a child. 

In this case, the custodial mother sought to have the non-custodial father held in contempt due to changing the dosage of their fifteen-year-old daughter’s medication during the father’s parenting time.  The father is a physician and believed that the dosage of their daughter’s prescription was inappropriate. 

Judge Duggan stated, “While it is the general principle that the custodial parent possesses the sole authority to make medical decisions for her child, this does not relegate a non-custodial parent to the status of a potted plant….the parent who is caring for a child, whether or not he has sole custody, has a residual authority to make decisions in the child’s best interest that are called for by the immediate circumstances–even if those decisions might overlap with or intrude upon the other parent’s ‘sole custody’ authority”.  Judge Duggan determined that overmedicating a child is an exigent circumstance, requiring immediate action.