PARENTAL RIGHTS AND DECISION MAKING

Shared Parental Rights

There is a public policy in Texas that encourages parents to share in the rights and duties of raising their child after they have separated or divorce. Due to this, the Texas Family Code provides parents with certain rights at all times, regardless of whether they are the primary parent or non-primary parent, as well as with rights during their period of possession. These can only be limited if the court finds that it is necessary to protect your child’s best interests.

Rights of parents at all times include:

· Receiving information from the other parent concerning your child’s health, education, and welfare, as well as conferring with the other parent before decisions are made that impact your child’s health, education, and welfare.

· Accessing your child’s medical, dental, psychological, and educational records; consulting with physicians, dentists, or psychologists; and being designated as a person to be notified in case of an emergency.

· Consenting to emergency medical, dental, and surgical treatment when there is an immediate danger to your child’s health and safety.

· Consulting with school officials concerning your child’s welfare, educational status, and school activities, as well as the attending school activities (e.g. school lunches, performances, and field trips).

Right and duties of parents during their period of possession include:

· The duty of care, control, protection, and reasonable discipline of the child.

· The duty to support the child, including providing clothing, food, shelter, and non-invasive medical and dental care.

· The right to consent to medical and dental care not involving an invasive procedure.

· The right to direct the moral and religious training of the child.

Methods of Decision Making for Major Rights

Other rights, including some very important ones, are not always shared between parents. These include the right to:

· Consent to medical, dental, and surgical treatment involving invasive procedures.  · Consent to psychiatric and psychological treatment.

· Make decisions concerning your child’s education.

· Represent your child in legal action and making decisions of substantial legal significance concerning your child.

There are a few different methods for allocating these rights. If parents cannot decide on which method to use, then the court must decide for them.

These methods are:

· Exclusive – only one parent can make the decision and does not need the agreement of the other parent.

· Exclusive After Consultation/Notice – same as above, but prior to making the decision the parent with the exclusive right must either consult with the other parent or provide notice to the other parent.

· Independent – either parent can make the decision without the agreement of the other.

· Independent After Consultation/Notice – the parents must consult with each other or provide notice to the other prior to making a decision, but an agreement is still not required.

· Agreement – the parents must agree on the decision otherwise it does not get made.

· Agreement with a Tie-Breaker – if the parents cannot agree on the decision then there can be a procedure in place for breaking the tie, such as consulting with the child’s pediatrician and following their recommendation.

What is Considered an Invasive Procedure?

With medical decisions, generally either parent can take their child to the doctor during a period of possession so long as the treatment is not invasive. However, if there is an emergency, such as falling and breaking an arm that requires surgery, then consent for invasive treatment can be given if there is an immediate danger to your child’s health or safety.

The right to consent to non-emergency invasive procedures can become a highly contested issue in child custody cases. This includes consenting to elective procedures that need to be pre-scheduled, such as ear tubes, removing tonsils, or surgery to address a sports injury. While these may not sound like procedures that would cause too much controversy, some that do include vaccinations, piercings, and cosmetic surgery.

School Enrollment and Educational Decisions

There can sometimes be a conflict with school enrollment when it comes to the right to designate your child’s primary residence and the right to make educational decisions. Many assume that the primary parent gets to choose where the child is enrolled in school, but this is not always the case. Unexpected issues can arise with school enrollment when parents choose to handle educational decisions by agreement and the primary parents moves the child outside of their school district.

Appellate courts have made conflicting rulings regarding the interplay between primary parents, educational decisions, and school enrollment. Without clear guidance on this subject, having an experienced child custody lawyer can help avoid unforeseen conflicts such as this. With school enrollment, it may be best for your case to include a separate provision that either specifies which parent can enroll your child in school or the specific school system where the child will be enrolled.

So, if the right to make educational decisions is not solely for school enrollment, then what does it include? This can cover essentially anything that requires parental consent with the school, such as participation in an extracurricular activity or enrollment in advanced placement courses. For parents with special-needs children1, this right can be critical for ensuring that your child receives appropriate accommodations and there is no set back to their individualized education program.