How joint legal custody alters health insurance
Joint Legal Custody refers to the legal authority vested in both parents over all decisions of a significant nature to be made for their children. This includes the right to participate in jointly making decisions with respect to the following: Under New Jersey law, joint legal custody means that both parents have equal responsibilities and decision-making authority pertaining to the above. Having joint legal custody does not mean the parents have to agree on everything that needs to be decided or that they will equal time with the child, but simply that they will share the right to make these critical decisions with respect to their children. The right to make these decisions cannot be delegated to anyone else as in the case of direct medical care, the release of medical records will only be released to the healthcare professional treating the child. Only when there is an emergency that the other parent cannot be contacted in a reasonable period of time do you contact your family physician or dentist. Parents who have Joint Legal Custody must adhere to an expectation to give an equal consideration to the views of the other parent with reference to the child , and must agree to confer in good faith on those matters, sharing information and discussing the needs of the child, whether in advance of an event requiring agreement or in advance of making a decision requiring input of the other, or otherwise, providing the other with sufficient notice of opportunity to advise the issues of concern. Following are some examples of what would occur when the parents cannot agree: While having joint legal custody does not grant either parent the right to unilaterally implement an important decision or to prevent the other from implementing it, it does not mean either will have the right to prevent the other from seeking relief from the court for a resolution to any disagreements they have concerning the above decision.
Definition of joint legal custody
When a trial court orders joint legal custody, each parent or the parent who has residential custody of the child has a responsibility to carry out the day to day management of the child’s affairs or decisions. This involves the decision making about the child’s care and upbringing. Joint legal custody does not require parents to participate in every decision concerning their children. A parent not having primary physical custody of the child must discuss educational, religious, medical or other matters relating to the child with the other parent in a meaningful way and to make reasonable efforts to reach a mutual decision if possible. The two parents share this authority.
A parent without residential custody of the child may ask for a modification of custody if the parent with residential custody denies the parent his or her decision making authority. The appropriate remedy would be to establish a visitation schedule for the parent without primary physical custody of the child that included time for that parent to visit the child while that parent made necessary decisions concerning the child. Or, in the case where one parent possessed sole authority to make decisions about the child, the court may consider a request by a parent seeking joint legal custody. If the court were to find in favor of joint legal custody, the custody order would include detailed directions about future required decisions.
When parents have joint legal custody and the child is covered by a health or dental insurance policy, usually the health care provider will bill the parent whose name appears first on the policy. That parent can then seek reimbursement from the other parent at any time, or just pay the policy’s co-payment when he or she brings the child to the doctor. ERISA law gives most custodial parents a right of access to the child’s health information from the plan administrator. Once the custodial parent has this information, he or she can usually make decisions with the child’s other parent or alone about further treatment, as well as request reimbursement for expenses if it makes sense to do so.
Decision-making in joint legal custody
When parents have joint legal custody of their child or children, this does not "automatically" impose on one parent the burden of paying for the child’s health insurance. Instead, the Court could impose a "legal obligation" on both parents to provide the child or children with health insurance. The Court can do so, whether they are paying for other child related expenses which are not covered by health insurance. For this reason, it is best to "disclose" to your attorney, all of your other child related expenses (including daycare, baby sitters and afterschool programs) so that their costs can be taken into consideration when negotiating an appropriate child support order. For instance, in straight forward situations, the Court may only be interested in knowing how much health insurance is being provided and what is included in this coverage. The Court will then impute, or "nickname", this amount to the non-insured parent, but will also impose upon them some obligations for payment of the uncovered medical costs of the child or children (such as co-pays, deductibles and outstanding medical bills).
For situations when one parent works for a company that provides medical insurance at their work place, frequently, the court will "order" that the parent provide the child or children with medical insurance. However, if it is not a full time job and/or it is part time employment, the Court may order the parent to dividing the cost of insurance on a percentage basis of the time worked. For instance, if you work 100 hours and your spouse works 200 hours, the court may allow a 33%/66% split. This will be dependent upon the total number of hours that the child or children are actually covered. Again, you can be "reimbursed" for your portion of the expense.
If you are self-employed, and you provide health insurance through your business, you will divide the cost of insurance on the same percentage basis as a non-business employed parent. More to the point, if your net income on your tax return is $ 60,000 and your spouse’s net income is $ 100,000, your net income on your tax return would be "averaged" and a "31%/69% split" would be used.
It should be anticipated that the cost of health insurance is going to increase, and this expense is going to be very significant. For this reason, you should be billing the other parent for any uncovered medical expenses pursuant to the "health insurance addendum" contained in your Child Support Order. A "retainer" for the accrued and uncovered medical expenses is a good safeguard if you are ordering the cost/expenses to be shared.
Health insurance requirements for joint legal custody
The most common disputes that arise in this context tend to be over what is or is not a covered service. For example, are orthodontics or LASIK procedures covered, and if so, how much of the cost of such procedures is covered? How high are the deductibles, and how are the deductibles allocated between the parents? Is there a co-pay, and how high is the co-pay? Who is responsible to pay first when there are two kinds of insurance coverage? Is there a coordination of benefits provision that applies to the situation and allows one parent to collect the entire bill less his or her individual co-pay from the other parent’s insurance, and vice versa? These questions might also arise in relation to the types of medical bills that are not covered by health plans but which parents are nonetheless responsible for pursuant to their child support provisions in their divorce judgment (for example, dental work, psychological therapy, eyeglasses, etc.). In the worst-case scenario, when there are recurring and unresolved disputes over these issues, it can result in masses of records and complicated litigation. Trying to decide whether receptions and document requests need to be in the hundreds is quite burdensome to parents, and also may require the assistance of an attorney. In these situations, it is particularly useful to obtain a stipulation from the court and a court order directing that all disputes concerning health insurance be arbitrated, and not litigated through massive document production and depositions. It is much less costly, much faster, and obviates some of the hassle of having recurrent disputes with the other parent.
Disputes on health insurance in joint legal custody
While most parties that are in some form of parenting litigation have some "pre-filing" temporary order, there are certainly many circumstances where parties begin a hotly contested case without any prior order or agreement. Thus, as early as the time of entry of the very first Order in a matter, it is important to consider whether joint legal custody disputes are going to be a point of contention and what protections need to be placed into an Order that is relatively silent on this topic. In other words, if you have to go to Court to obtain an Order, it is five times as difficult to fix something in an Order that is not there at all . Thus, if the parties are unable to agree on the contents of an Order, it is certainly better to be safe than sorry when considering a comprehensive Order that spells out in detail all provisions including health insurance. However, between an initial, interim, temporary or plenary agreement, parents should consult with legal counsel about ensuring that whatever agreement they are entering into contains language in the joint legal custody provisions that is comprehensive and carefully spells out the parties rights to make health care decisions for the child and who will be responsible for payment of the health care expenses.
Enforcement and agreement provisions
There are many situations that occur after a modification of a Parenting Plan or after the entry of Final Orders of Divorce that may impact the health insurance coverage of the minor children. Some of the more common scenarios involve a loss of employment by the Obligor, an increase or decrease in the cost of coverage, a termination of coverage offered by employer and other significant life changes. The obligation to provide health insurance is to continue until the age of 21 regardless of the age of majority for support purposes.
In the event that the Obligor loses his/her job and as a result, he/she no longer has health insurance coverage of the minor children, he/she is still obligated under Pennsylvania law to maintain health insurance coverage for the minor children. Therefore, he/she must obtain a new policy for the children immediately or reimburse the Obligee for the out-of-pocket medical expenses spent on the children. The memorandum accompanying the Pennsylvania Support Act provides guidance regarding the termination of coverage by the obligor. The obligation to provide health insurance on behalf of the minor child exists regardless of the cost to obtain such coverage. Accordingly, in the event that the cost increases, the obligor cannot terminate coverage. His/her only option would be to seek a modification of the existing support order.
The flip side is also true. If the costs to provide coverage decreases significantly, the Obligor cannot terminate such coverage. He/she would have to seek a modification of the existing support order.
Other less common scenarios involve the moving of the Obligee to a new job outside the area where the minor children reside. In such a scenario, if the move impacts the availability of good health care for the minor children, it would be up to the Obligee to address such issues with her/his employer. The Obligor does not and should not have to pay additional costs associated with the move. Instead, the Obligee may have to bear these additional costs if she/he decides to move and will need to seek a modification of the support order if necessary.
The Obligor may also be promoted or receive a raise at work. In such a case, the Obligee would not be entitled to any increase in support unless she/he could establish changed circumstances. The Obligee would most likely have to wait for a modification when the order is set to be reviewed. Employment changes will not allow the obligor to modify his/her child support obligation or health insurance premium contribution downward.
Change of circumstances
To conclude this discussion on joint legal custody and health insurance I would repeat that the purpose of child support in general and health insurance coverage in specific is to provide coverage for the child. Parents are equal and, absent abuse, are equally obligated to cover these needs . The best practice I would recommend is for parents with joint legal custody to address these issues either as a key component in your separation agreement or later through an agreed upon stipulation that both you and your ex sign.
