Parents have the responsibility and authority to make medical decisions for children after divorce. When parents of minor children do not live together, the right to make decisions about them must be allocated. The assignment of parental rights in Texas usually determines who will pay child support and when each parent will spend time with the kids. In Texas, the most important of these parental rights are in Family Code section 153.132;
- 132 (1) – primary residence
- 132 (2) – medical procedures
- 132 (3) – psychological counseling
- 132 (7) – education
Texas Parental Rights In Children’s Medical Care After Divorce:
There Is No Limit On Medical Decisions In An Emergency
Section 153.132 (2) applies only to elective invasive procedures. Texas Family Code 153.073(8) allows either parent to consent to any medical care, including surgery, in an emergency (“…an immediate danger to the health and safety of the child”).
Either Parent Can Authorize Non-Invasive Health Care
Section 153.074(3) allows a parent to consent to medical and dental care not involving an invasive procedure during that parent’s time with the child. Either may seek care for a sore throat, earache, etc. as long as it is not an invasive procedure.
Because each parent can consent to anything in an emergency and each can take the child for non-invasive care, only elective invasive procedures are included in Section 153.132(2).
Allocating The Parental Right To Make Elective Medical Decisions
It is unusual to have a problem with this right after the court order is in place. There are a few controversial elective procedures for children. There have been disagreements between parents with the recent controversy about vaccinations. However, most parents agree to follow the pediatrician’s recommendations about treatments such as ear tubes or tonsillectomies. Occasionally, there will be an issue with piercings, but those rarely make it to the courthouse.
- Exclusively to one parent: There is no good way to allocate this right between parents. It can be awarded exclusively to one, which allows that parent to make all decisions without concern for the other’s opinion.
- Jointly to both parents: The right to make invasive medical decisions can be awarded jointly to both parents. This requires the parents to consent before any elective invasive procedure. If they do not agree, the status quo remains unchanged. If the condition becomes an emergency, then either parent may consent.
- Each parent independently – The right to make elective medical decisions can be awarded independently, which allows each parent to consent to a procedure without consulting the other.
- One parent after consultation – Sometimes the right is awarded to one parent after consulting with the other. One parent decides, but must first request input from the other.
- Physician as a tiebreaker – During the negotiation, a lawyer or mediator might suggest the right be awarded jointly, requiring each parent’s consent, and a person to be designated as a tiebreaker. This usually the child’s pediatrician. A physician can be given authority to decide whether a child has surgery when one parent does not agree. If this option is chosen, it is best to name the pediatrician in the court order and agree that the named pediatrician will choose any specialist and the next physician if doctors change. Otherwise, each parent might take the child to different doctors in search of a preferred opinion.This option presumes that the physician is appropriate to make a parental decision. Both parents agree in advance to follow the recommendation of the child’s physician, which will be contrary to the choice of one of the parents. The pediatrician or specialist making the decision might even be unknown at the time the court order is signed.
Emotions can cause arguments about how this parental right is allocated. It rarely leads to problems after the court order is signed. The best choice is usually to follow the status quo to the extent possible. If one parent has typically made the medical decisions for the child, the order should follow that. If the decision-making parent would usually keep the other parent updated, then the order can require consultation and advance notice of treatment. If a parent’s judgment was trusted when their relationship was good, there is usually no reason to stop trusting it just because the parents end their marriage. Emotion and power issues can over-shadow this to the detriment of wise judgment and the children.
There are times when it is not appropriate to follow a past pattern. A parent might have a history of making poor decisions, could have developed substance abuse, or a mental illness.
If one parent made the daily medical decisions for their child or children, and has kept the other parent consistently updated, consider carefully whether there is a reason to change that. The inability to get along with each other doesn’t not mean that a parent has suddenly lost the ability to make good medical decisions.
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