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Congratulations on the birth of your baby boy! Now what?

For the parents of a brand new baby boy, oftentimes the first medical decision to be made for the child is whether he should be circumcised.  This medical procedure is usually performed in the hospital shortly after the birth of the child and outside the presence of the parents, or in the Jewish faith, eight days after the birth of the baby boy, which is part of the brit milah (a.k.a. bris) ritual.  But what happens when the parents do not agree on whether their baby should be circumcised?  What legal recourse do the parents have in Texas?  The answer is not an easy one.

In Texas, parents can legally resolve their disputes in a “Suit Affecting the Parent-Child Relationship” (“SAPCR”) wherein the Court is asked to appoint the parents with certain rights, powers, and duties over their child.  The problem in the case of circumcision, however, is that a SAPCR may not be filed for an unborn child.  Therefore, if a parent has a strong objection to circumcision, then he or she must wait until after the child is born to prevent an unwanted circumcision and then act quickly.  Assuming that the medical professionals will not perform the procedure against one parent’s clear objection, the objecting parent will need to file a SAPCR immediately and request a Temporary Restraining Order to prohibit the non-objecting party from consenting to the circumcision until the Court cannot decide the matter after notice and hearing.

Believe it or not, the circumcision dispute is becoming a common one around the United States, particularly in Florida right now.  So what can a Texas Court do about a potential circumcision dispute?  After hearing argument and evidence, the Court can appoint the parents with certain rights, powers, and duties.  As it relates to the issue of circumcision, the following rights could come into play:

(1) the right to direct the moral and religious training of the child,  as codified in Section 153.074(4) of the Texas Family Code; and

(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures, as codified in Section 153.132(2) of the Texas Family Code.

A parent in favor of circumcision might be requesting the procedure because of religious reasons, and most of the time, both parents who are parties in a SAPCR will be appointed with the right to direct the moral and religious training of the child.  The Texas Family Code, however, makes clear that this right is typically exercisable only during that parent’s period of possession of the child.  This right, therefore, is more applicable to children of interfaith parents who might disagree on whether their child should go to a certain place of worship at a certain time.  The Texas legislature has attempted to resolve such disputes with this statute by providing that the parent who has possession at the time can decide whether his or her child will attend church, mosque, synagogue, or temple during that parent’s periods of possession.  Then if the other parent does not want his or her child to attend a certain place of worship, that parent does not have to take the child to church, etc. on his or her weekends.  In other words, whoever has the child at the time gets to decide.  Circumcision, however, is permanent and cannot be determined by a parent’s periods of possession.  Therefore, the right to direct the moral and religious training of the child is unlikely to determine who has the right to circumcise.

Circumcision is unquestionably medical or surgical treatment involving an invasive procedure; therefore, it appropriately falls into the scope of the codified “right to consent to medical, dental, and surgical treatment involving invasive procedures.”  A Court may appoint both parents with this right independently (meaning they can exercise without consent of the other parent) or that the right is subject to the parties’ agreement (meaning that a parent must obtain consent from the other parent prior to exercising the right).  If the parents, however, cannot agree on whether their son should be circumcised, then the Court should appoint one parent with this right exclusively (which the Court has the power to do) after hearing the argument and evidence.

To be sure, there are two sides to this debate; therefore, the Judge’s decision on such a matter could be influenced by his or her personal opinion on the issue of circumcision.  If you, your relative, or friend are in need of further advice on how to best resolve parental disputes, please contact an attorney at McClure Law Group, PC, 214-692-8200.