Family Law – “Joint Custody”

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Avoiding Liability Bulletin – February 2008

… How is the term “joint custody” defined in the statutes governing family law matters (e.g., child custody and/or visitation) in the state where you practice? Does the term refer to physical custody, legal custody, or both? Why does it matter? In answer to the latter question, it matters because proper parental consent to the treatment of a minor and a valid parental signature on an authorization form may depend upon the meaning of this term, if it is specifically defined in a particular state’s statute. There may also be other related terms that bear on the answer to the latter question – such as legal custody, physical custody, joint or sole legal custody, and joint or sole physical custody.

In one state, the term “joint custody” means joint legal custody and joint physical custody. In that state, “joint legal custody” means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of a child. This does not mean that both parents must sign an authorization form to release information pertaining to the minor’s treatment, for example, but rather, it means that either parent can sign the authorization form. Likewise, either parent may consent to treatment. Of course, the court order may specify otherwise – such as, that the authorization or consent of both parents shall be required for certain actions.

In that state, the term “joint physical custody” means that each of the parents shall have significant periods of physical custody. The law specifies that joint physical custody shall be shared by the parents in such a way so as to assure a child of having frequent and continuing contact with both parents. Generally, physical custody does not entitle a parent to consent to treatment or to sign an authorization form on behalf of the minor. Those issues are resolved, in the state being discussed, by determining the “legal custody” arrangement.

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Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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