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When Parent's Disagree on Medical Decisions...

The Texas legislature has recognized parents’ right to consent to their children’s medical and surgical treatments. Tex. Fam. Code § 151.001(6). See also id. at § 153.132(2) (giving a parent sole managing conservator the exclusive right to consent to his or her children’s medical and surgical treatments.) When parents have been appointed their children’s joint managing conservators—such as when the parents have divorced or live apart—a trial court must “allocate[] between the parents, independently, jointly, or exclusively, all of the [] rights and duties of a parent,” including the right to consent to medical and surgical treatments. Id. at § 153.133(a)(4). So what happens when each parent has the right to consent to medical and surgical treatment but they cannot—or will not—agree?

            A situation potentially posing this question is currently going on in Florida, where mother Heather Hironimus has been jailed for secreting her son from his father and the courts and refusing to schedule her four year old son’s circumcision. See Syndey Lupkin, Mom Jailed over Circumcision Dispute with Son’s Father, ABC News, May 19, 2015, available at http://abcnews.go.com/Health/mom-jailed-circumcision-dispute-sons-father/story?id=31127540. Heather has argued that her son doesn’t want to be circumcised and that he is afraid and filed a suit in federal court on his behalf. Id.

            The Supreme Court of Oregon also faced a similar question. In Marriage of Boldt, 176 P.3d 388 (Or. 2008), a mother sought to change the custody arrangement with her ex-husband to give her the exclusive right to consent to their son’s medical and surgical treatment. Alternatively, she sought a court order prohibiting the ex-husband from having their 12 year old son circumcised, a procedure desired since the father and son were converting to Judaism. The Supreme Court, displaying more wisdom and consideration than either parent, turned to the wishes of the boy and held “we think that no decision should be made without some assessment of [the child’s] true state of mind.” Id. In sending the case back to the trial court, the Supreme Court set parameters for how the lower court should decide the case, writing “[i]f the trial court finds that [the child] agrees to be circumcised, the court shall enter an order denying mother’s motions.” Id. If the child does not consent to the circumcision, the court must then determine “whether [the child’s] opposition to the circumcision will affect father’s ability to properly care for [the child]” and whether the parents’ prior custody arrangement is still in the child’s best interest. Id.

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