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Texas Parental Right to Make Medical and Psychological Treatment Decisions

motherIn Davenport v. Davenport, a mother and a father each appealed from a trial court’s order related to their counter-petitions to modify the parent-child relationship. The couple was divorced in 2005, one year after their daughter was born. Ten years later, the mother filed a first amended petition to modify the parent-child relationship, hoping to modify a prior modification order rendered in 2012.

In the prior order, she and the father were appointed joint managing conservators of the daughter, but the court didn’t grant either the exclusive right to designate her residence. The order also granted both parents independent rights to make decisions about the daughter’s medical and psychological care and education as long as each first conferred with the other. Neither had to pay child support, although the father had to provide the daughter with health insurance. The parents were granted weeklong periods of possession during the school year and alternating two-week periods of possession during summers.

The mother asked to be appointed a sole managing conservator of the daughter or a primary joint managing conservator with the exclusive right to designate a primary residence, to make legal and educational decisions, and to consent to health care treatments for the daughter. She asked that the father have access through a standard possession order and that he pay monthly child support. The father counter-petitioned to have the rights that the mother wanted.

A jury trial was held. The mother testified that in the existing arrangement of alternating weeklong periods of possession, the daughter’s demeanor changed, and it was hard to get her back on track when she came back to her home. She also testified that she and the father had trouble communicating, and she didn’t get along with her daughter’s stepmother. She also testified the father had a lot of money and had sued her several times since 2012, and he had hired a private investigator to follow her due to a drunk driving charge that was dismissed.

The father testified that when the daughter returned to his house, she was excited to be there and wanted to know what she missed. He testified he and his daughter had a good father-daughter relationship and enjoyed a lot of activities together. The daughter wanted a relationship with the father. The father took her to counseling because she had trouble in school and with her stepsister during his weeks of possession, whereas the mother wouldn’t take the daughter to therapy during her weeks.

The stepmother testified that the daughter’s behavior had improved since she started counseling. She also testified the daughter got along well now with her stepsister.

The jury found that there was a material and substantial change in circumstances. It determined it wasn’t in the daughter’s best interest to have the mother be her sole managing conservator. Instead, it found the mother should be appointed joint managing conservator with the exclusive right to designate the daughter’s primary residence. The court ruled the mother had the exclusive right to designate a primary residence, represent her legally, and make educational decisions for her. However, the father and mother had the right to consent to health care treatments. Except for summer possession, the possession schedule stayed the same. The father had to pay support to the mother.

The father moved to disregard the findings. The trial court reconsidered and amended its order regarding the amount of support. The mother and father appealed. Among other things, the mother argued it was a mistake to give both parties the right to make medical and psychological treatment decisions for the daughter.

The appellate court explained that the child’s best interest is always the primary consideration of the court under Texas Family Code § 153.002. The mother argued that Family Code section 153.252 imposed a rebuttable presumption requiring the court to enter a standard possession order. The appellate court explained she was wrong, and these guidelines were merely guidance.

The mother pointed out she and the father didn’t get along, and the daughter didn’t trust adults. However, the father believed she needed counseling and didn’t ask the mother to contribute to the counseling bills. The appellate court found that there was enough evidence to support the lower court’s decision that it was in the child’s best interest to allow both parents the right to consent to medical and psychological treatment for the daughter after conferring.

If your divorce involves matters related to child custody, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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