After a Texas divorce, the parent who has primary custody does not automatically have the right to make every medical decision for the child. The divorce decree or custody order determines how medical decision-making authority is divided between the parents. Depending on the order, certain decisions may be made independently by either parent, require the parents to agree, or belong exclusively to one parent.
Texas law also treats different types of medical decisions differently. A parent who has possession of a child generally has the right to consent to medical and dental care that does not involve an invasive procedure, unless the court order limits that right. Decisions involving invasive medical procedures and psychiatric or psychological treatment may be allocated differently in the decree. Both parents may also retain rights to medical information and emergency decision-making even when one parent has greater authority over other types of treatment. For these reasons, determining who can make a particular medical decision starts with the signed court order, not simply with which parent the child lives with most of the time.
How Does a Texas Custody Order Divide Medical Decision-Making Rights?
A Texas custody order divides medical decision-making rights by specifying, for each right involved, whether it belongs exclusively to one parent, requires the parents’ joint agreement, or can be exercised independently by either parent. Texas custody orders use the term conservator to describe a parent who has court-ordered rights and duties concerning a child. When both parents are appointed conservators, Texas Family Code § 153.071 requires the court to allocate each parents’ rights and duties.
This distinction is particularly important when parents are named joint managing conservators. Joint managing conservatorship does not necessarily mean that every decision must be made jointly or that each parent receives identical decision-making authority. The order can give one parent exclusive authority over a particular issue while allowing other decisions to be made jointly or independently. For example, a decree could require both parents to agree before consenting to medical, dental, or surgical treatment involving an invasive procedure. Another order could give one parent the exclusive right to make that decision. The specific language of the decree controls.
The rules are different when a parent is appointed sole managing conservator. Unless the court order provides otherwise, Texas Family Code § 153.132 gives the sole managing conservator the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures and the exclusive right to consent to psychiatric and psychological treatment. Note, though, that label attached to a parent’s custody arrangement does not always provide the complete answer. Parents should review the section of their decree addressing conservatorship rights and duties to determine exactly how medical authority is allocated.
What Medical Decisions Can a Parent Make While the Child Is With Them?
A parent who is a conservator can consent to medical and dental care that does not involve an invasive procedure during that parent’s period of possession, under Texas Family Code § 153.074, unless the court order limits that right. Texas law gives a parent appointed as a conservator this right and duty during the period the parent has possession of the child.
This allows a parent who has the child to handle many ordinary health care needs without treating every doctor’s visit as a major joint decision. If a child becomes sick during that parent’s possession, for example, the parent may generally consent to noninvasive medical care, subject to any limitations in the court order. That authority should not be confused with the right to authorize an invasive procedure. A scheduled surgery or another medical procedure that qualifies as invasive falls under a separate decision-making right. The decree may give that right to one parent, allow each parent to exercise it independently, or require joint agreement.
Parents appointed as conservators also generally retain important health-related rights at all times under Texas Family Code § 153.073, unless those rights have been limited by the court. These include the right to receive information from the other conservator concerning the child’s health; to access the child’s medical, dental, and psychological records; and to consult with the child’s physician, dentist, or psychologist.
The statute also gives each parent conservator the right to confer with the other parent, to the extent possible, before making a decision concerning the child’s health, education, and welfare, unless the court order limits that right. This is framed as a right rather than a duty: § 153.073 does not, by its terms, require the decision-making parent to consult the other parent. Separately, however, Texas Family Code § 153.076 requires each conservator to timely inform the other of significant information concerning the child’s health, education, and welfare, and many custody orders impose additional conferral requirements. Having authority to make a particular decision therefore does not eliminate the other parent’s right to information, and the specific court order should be reviewed for any duty to consult.
Who Makes Decisions About Surgery, Mental Health Treatment, and Other Major Medical Care?
For medical, dental, and surgical treatment involving an invasive procedure, parents need to look at the specific allocation of that right in the custody order. The same is true for psychiatric and psychological treatment. These are distinct rights that a Texas court can allocate when establishing conservatorship. If one parent has the exclusive right to consent to an invasive medical procedure, that parent has the decision-making authority granted by the order. If the right is subject to joint agreement, the parents must follow that requirement rather than treating possession of the child as permission to make the decision alone. If the order grants an independent right, the language of the order should be reviewed carefully to determine what notice, consultation, or other requirements apply.
Psychiatric and psychological treatment should also be checked separately rather than assumed to fall under the rules for an ordinary medical appointment. Texas law specifically identifies the right to consent to psychiatric and psychological treatment, and a custody order can determine how that right is exercised. This is one reason parents should not rely solely on terms such as “custodial parent” and “noncustodial parent.” Those descriptions do not show whether a particular medical right is independent, joint, or exclusive. The decree does.
What Happens in a Medical Emergency?
Unless limited by a court order, a parent appointed as a conservator has the right at all times to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the child’s health and safety, under Texas Family Code § 153.073. This means the ordinary allocation of authority over planned invasive procedures should not be confused with the ability to obtain treatment during an actual emergency. If a child needs immediate medical attention, the law gives a conservator emergency consent authority, subject to limitations contained in the court order.
Parents also generally have the right to be designated in the child’s records as someone who should be notified in an emergency. When possible, the other parent should be informed about the child’s condition and treatment, consistent with the information and consultation rights contained in the order.
What Happens If Parents Disagree About a Child’s Medical Treatment?
The first step is to determine what the existing order requires. The appropriate response to a medical disagreement depends on whether one parent already has authority to make the decision, the parents are required to agree, or the order is unclear. If one parent has exclusive authority over the treatment at issue, a disagreement by the other parent does not by itself change the allocation made in the court order. If the decree requires joint agreement, however, one parent generally cannot resolve the disagreement simply by treating the decision as an independent right.
A different problem arises when one parent fails to follow a clear provision of the decree. In that situation, enforcement of the existing order may be appropriate. Enforcement addresses compliance with rights and duties that have already been established by the court. It does not rewrite those rights for future decisions. If the language of the order is unclear, the issue may instead involve clarification. If the existing allocation of medical decision-making authority no longer works because circumstances have changed, modification may be the appropriate process. These are different legal remedies, so parents should identify the problem with the existing order before deciding what relief to request.
Can Medical Decision-Making Rights Be Changed After a Texas Divorce?
Yes. A Texas court can modify the terms and conditions of conservatorship, including the allocation of parental rights, when the statutory requirements for modification are met. Under Texas Family Code § 156.101, a court may modify a conservatorship order if the modification would be in the child’s best interest and one of the statutory grounds exists. One common ground is that the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the earlier of the date the existing order was rendered or the date a mediated or collaborative settlement agreement on which the order was based was signed.
A disagreement over one medical decision does not automatically establish that medical decision-making rights should be changed. The court considers whether the legal requirements for modification have been satisfied and whether the requested change is in the child’s best interest. Depending on the circumstances, repeated disputes that interfere with necessary treatment, significant changes in a child’s medical needs, or changes affecting a parent’s ability to exercise the rights assigned in the existing order may become relevant to a modification request. The facts and the terms of the current order matter.
Parents should also distinguish a modification from an informal agreement between themselves. Agreeing temporarily on how to handle a particular appointment or treatment does not, by itself, rewrite the court order. If the court-ordered allocation of rights needs to change, the modification must be made through the applicable legal process.
Talk With a Texas Family Law Attorney About Medical Decision-Making
Disagreements about a child’s medical care can involve more than deciding which treatment is best. Parents may first need to determine who has the legal authority to make the particular decision, whether the other parent has consultation or information rights, and whether the existing court order is being followed.
Depending on the problem, the appropriate legal process may involve enforcement of an existing order, clarification of unclear terms, or modification of the allocation of parental rights. Contact Bailey & Galyen to discuss medical decision-making, conservatorship, or a custody order with a Texas family law attorney.
Frequently Asked Questions
1. Does the custodial parent automatically make all medical decisions in Texas?
No. Being the parent with whom the child primarily lives does not automatically give that parent authority over every medical decision. The custody order determines how the relevant rights are divided between the parents.
When both parents are conservators, a medical decision-making right may belong exclusively to one parent, require joint agreement, or be exercised independently, depending on the order. Parents should review the actual conservatorship provisions rather than assuming that primary possession determines medical authority.
2. Can I take my child to the doctor without my ex’s permission?
In many situations, yes, but the type of care matters. Unless limited by court order, a conservator who has possession of the child generally has the right to consent to medical and dental care that does not involve an invasive procedure.
That does not necessarily authorize the parent to consent to surgery, another invasive procedure, or psychiatric or psychological treatment. Those decisions may be allocated separately in the custody order. The decree should be reviewed before assuming that authority over routine medical care extends to a more significant treatment decision.
3. Can one parent authorize therapy for a child without the other parent’s consent?
Only if the custody order gives that parent the exclusive right to consent to psychiatric and psychological treatment. Texas courts allocate this right specifically, and it can be assigned exclusively to one parent, made subject to joint agreement, or otherwise specified in the decree.
A parent should therefore review the decree before assuming that either parent’s general authority over the child’s medical care also permits that parent to unilaterally authorize psychological treatment. If the order requires joint agreement and the parents cannot agree, the dispute may require a different legal process rather than one parent simply proceeding without the other’s consent.
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