With Deb E. Guston, Esq.

As the COVD-19 crisis continues, many parents are faced with one of their worst fear: a sick child. While the thought of your child contracting coronavirus is a difficult one to grapple with, it is important to be aware of what you will be able to do as a parent, informed of your rights, and as prepared as possible to handle this incredibly stressful situation. Our paralegal Lori, a parent to two daughters, interviewed Deb Guston, a New Jersey family law attorney with expertise in estate planning and guardianship matters, to offer some insight:  

Question: Are parents able to stay with their child at the hospital? 

Answer: Right now this is a scary situation. Most hospitals have severely curtailed visits, especially if a patient has COVID-19 and even if they are children.  If visitors are allowed, the policies are usually to only allow one per patient so as to reduce the possibility of community spread. Hospitals are also getting very good at assisting patient “visits” using technology. 


Question: What rights do parents have vis-à-vis the medical establishment in this situation? 

Answer: Hospitals and doctors have almost unlimited rights in a medical emergency to make policy. If you feel your rights or your child’s rights are being violated, ask to speak with the hospital’s administrator responsible for the policy, or ask an attorney to speak with the hospital. If you ask a third party, you will need to give them a release under the federal medical records privacy law to be able to speak with hospital personnel.  The most important thing is not to argue with doctors or nurses – they are acting on policy that is determined by the hospital or state government and arguing with them may take them away from treating patients. 


Question: Are there added complexities or concerns in these situations for LGBTQ families? 

Answer: There should be no difference in how LGBTQ parents are treated when dealing with their children and hospitals.  However, making sure that every parent is either a legal parent or has legal authority from a legal parent is necessary to make sure that parental rights will be respected.  This is a good time to consider adoptions for “second parents” and confirmatory adoptions for those parents whose names are on a birth certificate and there is no other person (such as a known sperm donor) who might have parental rights.  NJ has a new law that took effect April 1, 2020 that makes these confirmatory adoptions easier and faster. 


Question: Who ultimately makes medical decisions if the parents disagree? 

Answer: If there are disagreements between parents, decision making will fall to: 1) a parent with sole legal custody, either by court order, agreement, or because the legal mother of the child was unmarried to the father at the time of the birth and no documentation is in place regarding the other parent’s status; 2) a person who is authorized by written agreement or Power of Attorney to provide medical authorizations; or 3) a hospital or parent may initiate an emergency action in the court for either the appointment of an emergency medical guardian for the child or for specific direction to provide care the doctor recommends, but the parent(s) will not authorize. 


Question: Are there any other important issues that I have not raised? 

Answer: It is important to be aware that power of attorney concerning children can only be affected for six (6) months in duration.  They then expire and need to be re-executed. 

We would like to thank Attorney Deb Guston again for taking the time to contribute her expertise to this Q+A series. Information and awareness of some of our greatest tools during this uncertain time, and we hope that this series has helped to answer some of your questions and shed some light on your rights, and on steps that can be taken to ensure that you and your family are prepared for whatever comes your way.