In some Texas custody cases, parents may not agree on the best medical treatment for a child, especially a child with complex special needs. Courts sometimes give each parent the authority to make decisions regarding medical treatment during their periods of possession, but this can become complicated when the parents cannot agree on appropriate treatment. In a recent case, a father appealed a divorce decree that allowed each parent to make decisions regarding non-invasive treatment during their respective periods of possession.
Medical Decision Making
The parties’ divorce decree gave the mother the exclusive right to enroll their younger child in school and gave both parents the authority to consent to non-invasive medical treatment during their possession. The father appealed these two issues. Although the parties had two children, only the younger child was subject to the appeal.
The father argued that allowing each parent the right to decide whether to administer medication to the child during their possession was not in the child’s best interest.
The child has been diagnosed with ADHD; autism spectrum disorder; “intellectual, developmental disorder with mild severity; and combined presentation and language disorder.”
According to a child neurologist, the child was hyperactive, uncontrollable, and did not follow instructions. The child also hit the father. The father reported similar behavior from the child during his possession, but the mother said the child was well-behaved and not hyperactive with her.
The neurologist prescribed medication for hyperactivity and aggression. He testified the medicine should be given daily. According to the court’s opinion, the father administered the medication, but the mother questioned whether the child needed the medication. The child therefore took the medication during the father’s possession but not the mother’s. The neurologist testified sporadic administration would cause the child’s medication levels to fluctuate, reducing their effectiveness. The neurologist testified this would not harm the child or give him side effects or withdrawal symptoms, but he did believe the child’s unruly behavior continued due to the mother not giving the medication.
The father argued the court should have ordered both parents to give the medications to the child. He also requested a more limited schedule for mother due to her decision not to administer the medication.
A clinical neuropsychologist recommended ABA therapy for the child. The mother testified the child did not have behavioral problems with her. She thought the ABA therapy was helping, but thought the child regressed when he stayed with his father.
A behavioral analyst provided the ABA therapy for the child for almost five years. She testified she was with the child about three hours a week and did an assessment each six months. She testified that the therapy program worked best with consistency and there is regression without consistent therapy. She testified the child missed sessions during long term possession by the father.
The appeals court noted the undisputed evidence showed the child had multiple diagnoses for which treatment was appropriate and prescribed. The medications and therapies prescribed for the child were more effective if consistently administered. Because the parents disagreed on the appropriate treatment for the child, the each refused to administer the treatment the other parent chose. The appeals court noted the father proposed that he should have the exclusive right to make medical decisions, but did not offer an explanation of why that would be better than the mother having the exclusive right to make medical decisions.
The appeals court noted that there was evidence that both the medication and therapy-based treatments could be more effective if implemented consistently, but that neither were life threatening to the child if administered inconsistently. The appeals court further noted that there was nothing in the record indicating either treatment alone was better for the child, but there was evidence that consistent administration of one or both could improve the child’s outcome.
The appeals court concluded the trial court acted within its discretion to give each parent the right to consent to non-invasive treatment during their possession.
Educational Decision Making
The father also argued awarding the mother the exclusive right to make educational decisions for the child was an abuse of discretion.
The mother had selected a public school where the child attended general and special education classes. He was accompanied by an assistant in general education. His special education case manager testified the child was not hyperactive and she did not think he was a danger to himself or others. She testified regarding a “behavioral intervention plan” that allocated time in a special education setting to address behaviors. She testified he had “made tremendous growth over the past year.” He had learned coping skills and had fewer “meltdowns” during school over the past year and a half before trial. She testified he had developed verbal skills to express his feelings and needs and was learning emotional regulation. He was doing well in his school work.
The father wanted the child to attend a special school, where the father thought he would get ABA, occupational, and speech therapy. He thought this school would be better because the child would get one-on-one attention from a therapist. The father claimed the child was “operating at 30 to 40 percent capacity” and was making “very little progress.” The father argued the court should have awarded him the exclusive right to choose the child’s school.
The appeals court noted there was undisputed evidence the child had multiple learning and intellectual disabilities that required special education. The appeals court noted the child was receiving individualized attention in his current school and was thriving, with fewer meltdowns, and improvement in his ability to express his needs and wants. The appeals court determined the record showed the child’s current school met his needs and that he was making progress. The appeals court therefore did not conclude there was an abuse of discretion in the court’s decision to give the mother the exclusive right to choose the child’s school.
The appeals court affirmed the final divorce decree.
Consult a Dallas Custody Lawyer
This case illustrates that possession and access are not the only issues that may arise in a custody dispute. If you have a child with special needs, an experienced Texas child custody attorney can work with you to identify the important issues in your case and pursue a favorable custody arrangement in your child’s best interest. Set up a consultation with McClure Law Group at 214.692.8200.