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Medical Decision-Making for Children During and After a Pandemic in Texas

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Parents in Texas have had to adjust almost everything they know about parenting during the past few months. The COVID-19 pandemic caused schools to close across the state and the country. Homes suddenly became classrooms, and parents unexpectedly found themselves becoming teachers. For parents with child custody and child support orders, whether from a divorce or a suit affecting the parent-child relationship (SAPCR), the pandemic has strained parenting plans, visitation schedules, and child support payments. A court order establishing parents’ rights and duties — known in Texas as conservatorship — does more than establish which parent has the children at what times. It also describes how parents should address medical decisions and share medical expenses. So far, COVID-19 does not seem to have as dire an effect on most children as it has on older and more vulnerable adults. Hopefully further research will confirm this, but parents should still understand how to approach medical decisions related to this pandemic should they arise.

Parents’ Rights Regarding Information and Decision-Making

In a divorce involving minor children or a SAPCR, the court must determine conservatorship in its final decree. The terminology used by Texas courts and family lawyers can be confusing.

Types of Conservatorship

Texas law makes two distinctions regarding conservatorship:

  • Managing vs. possessory conservatorship: A managing conservator has the full range of rights and duties associated with parenthood, while the rights of a possessory conservator are more limited.
  • Joint vs. sole conservatorship: Managing conservatorship is further divided between joint managing conservatorship, in which two conservators share the responsibilities of parenthood, and sole managing conservatorship.

Texas law presumes that it is in a child’s best interest for both parents to serve as joint managing conservators. A court may decide, however, to name one parent as sole managing conservator and the other as a possessory conservator.

Parental Rights

Unless a court orders otherwise, parents have certain rights regarding their children at all times under the Texas Family Code. The rights to access a child’s medical records and to make medical decisions for the child are not on this list of universal parental rights. They are among the rights that the court must allot between the parents in a written order granting them conservatorship.

Rights of Parents Who Are Also Conservators

A parent who has been named as a conservator has certain rights at all times, as defined by the Family Code. These include the rights:

  • To information about the child’s health;
  • To discuss medical decisions with the other parent before making a decision;
  • To access the child’s medical records;
  • To consult with the child’s doctors and other medical professionals; and
  • To consent to treatment, including invasive surgery, “during an emergency involving an immediate danger to the health and safety of the child.”

A final decree in a divorce or SAPCR must “specif[y] the rights and duties of each parent regarding the child's physical care [and] support.” When a parent/conservator has possession of the child, Texas law gives them the right to consent to non-invasive medical procedures.

A parent who has been appointed sole managing conservator has the exclusive right “to consent to medical, dental, and surgical treatment involving invasive procedures.” This is in addition to the other rights mentioned above. It applies regardless of whether the procedure is necessary in an emergency.

With regard to joint managing conservators and non-emergency invasive procedures, the parents must consult with one another. Neither of them can unilaterally consent to an invasive procedure when the child’s health or safety are not in imminent danger.

What Does All This Mean?

The Family Code does not offer a definition of “invasive procedure.” Some Texas courts have turned to the Health and Safety Code for a definition. Section 85.202(3) defines an “invasive procedure” as either:

  1. “A surgical entry into tissues, cavities, or organs”; or
  2. “Repair of major traumatic injuries” that takes place in an operating room, a doctor’s or dentist’s office, or certain other locations.

To offer an example relevant to the current public health crisis, parents who are joint managing conservators may each speak to their child’s doctors, access the child’s medical records, and discuss the child's health and well-being with one another. If the child requires an emergency invasive medical procedure, such as intubation due to complications from COVID-19, either parent may give consent. They should, however, notify the other parent as soon as possible.

Parents’ Duties Regarding Medical Care

Parents who are named as conservators have a duty under Texas law “to inform the other a timely manner of significant information concerning the health...and welfare of the child.” While the other parent’s consent is not necessarily required prior to emergency medical treatment, the parent who takes the child to the doctor or hospital has an obligation to inform the other parent about the situation.

Medical Expenses

Texas law establishes guidelines for payment of children’s health and medical expenses. Courts often order parents to split any medical expenses for the child that are not covered by insurance.

In addition to orders regarding the payment of child support, Texas law directs courts to render orders for medical support. The parents must inform the court of the availability of health insurance coverage for the child, and whether the child is receiving other medical or health benefits. Medical support is considered a separate form of child support.

In many cases, the parent who is ordered to pay child support (the “obligor”) is also ordered to include the child in their health insurance coverage. A court may also order the obligor to obtain health insurance for the child, or to pay cash medical support to the other parent (the “obligee.”) In that situation, the total amount of cash medical support cannot exceed nine percent of the obligor’s income.

Medical Decisions Regarding COVID-19

The COVID-19 pandemic does not appear to pose a particular risk to most children, with the exception of children with certain underlying health conditions. That said, we still know very little about this virus and the long-term effects it can have on people who recover from infection. Parents who are subject to a divorce or SAPCR decree in Texas should consider how to handle potential decisions and expenses related to the pandemic. These may include decisions about:

  • Whether to have a child tested for COVID-19;
  • Quarantining or isolating a child who may have been exposed to the coronavirus, or who is displaying symptoms of COVID-19;
  • Doctor visits if a child is showing symptoms or has been diagnosed with the illness; and
  • Hospitalization if a child’s symptoms worsen.

Stacey Valdez is a board-certified family lawyer who practices in the greater Houston, Texas area. We represent clients who are going through profoundly difficult ordeals, such as divorce and child custody disputes. Our clients and their families are our top priority at Stacey Valdez & Associates. We are committed to advocating for our clients’ rights and interests with dignity, compassion, and tireless advocacy. To schedule a confidential consultation to discuss your case with a member of our team, please contact us today online, or give us a call at (713) 294-7072. Your first meeting with us is free in most situations.