Recently the New York Times highlighted a Pennsylvania child custody case focusing on whether or not a child who has sustained multiple concussions should continue to play football.  The court has allowed the child to play high school football on an interim basis while the case moves forward.  The issue involves decisions regarding choice of activity and potential medical decisions.  The court usually handles decisions regarding childhood activities differently then it handles medical decisions. 

When Pennsylvania Supreme Court Justice Max Baer was a family court trial judge he addressed the issue of basic childhood activity decisions by saying “certain decision-making aspects of parenthood do not qualify as ‘legal custody disputes,’ and therefore should not be brought before a court for adjudication. Parents must either reach agreement on such issues, or agree to disagree. If parents choose the latter, each should do what he or she believes best serves his or her child during the times such parent enjoys physical custody of the child.”  Livingston v. Landon, 32 Pa. D. & C. 4th 182 (1996). In that case the court chose not to intervene because the court believed it “would do [the] Children more harm than good by assuming the day-to-day parenting decisions, a function [the court is] ill-equipped to carry out, and do parents more harm than good by creating the illusion that [the court] will always be there when they disagree.”

The problem arises when enrollment in actives potentially rises to the level of a legal custody issue.  Legal custody is the right to make major decisions in the areas of education, medical treatment, mental health treatment, and religion. Usually determining if a child should participate in an activity is a matter to be agreed up or disagreed upon by the parents.  Here if the child continues to be allowed to participate in football, it may trigger future medical decisions about concussion prevention, concussion treatment, or mental health treatment.  On the other hand if the decision does not rise to the level of a legal custody the court may be assuming day-to-day parenting decisions.  Many families, both intact and non-intact, make this decision without court assistance regularly.

Should a child with multiple concussions continue to play a sport with a high concussion risk?  Is this a legal custody matter or not?  The court will likely weigh input from both parents and the child, while looking at the effects of the concussion, the desire to play the sport, the potential effects of future concussions, and the maturity of the preferences presented.  The court’s analysis would likely be different if a child is about to start a sport versus if the child has a history of playing the sport.  The analysis would also differ depending on if the child has a history of concussions.  We will have to wait to see if the outcome of the case and whether the judge makes a decision or asks the parents to make the decision on their own.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.


Julie R. Colton focuses her practice on all aspects of family law, including but not limited to issues of custody, child support, alimony and spousal support, equitable distribution, domestic violence, international custody, and prenuptial agreements. Her practice is located in Obermayer’s Pittbsurgh office. She can be reached at 412-288-2474 or at Julie.Colton@obermayer.com