Every family is different, and every child is different. The unique privilege of raising a special needs child can be challenging. This is especially the case when going through a divorce or child custody situation. When raising a child with special needs and going through a divorce or child custody situation, it is crucial to understand what the Texas Family Code and Texas Courts provide for guidance and orders concerning children with special needs.
In our practice, we most often see families with children with the following special needs:
A child custody order and a divorce decree can and will address many of the issues that will come up in the journey of raising a special needs child. Specifically, the court order should address:
Every child custody order will contain an allocation of conservatorship rights. The Texas Family Code outlines rights and duties that are assigned to the parents. For routine matters, the Texas Family Code states:
RIGHTS OF PARENT AT ALL TIMES. (a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
(3) of access to medical, dental, psychological, and educational records of the child;
(4) to consult with a physician, dentist, or psychologist of the child;
(5) to consult with school officials concerning the child’s welfare and educational status, including school activities;
(6) to attend school activities, including school lunches, performances, and field trips;
(7) to be designated on the child’s records as a person to be notified in case of an emergency;
(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
(b) The court shall specify in the order the rights that a parent retains at all times.
RIGHTS AND DUTIES DURING PERIOD OF POSSESSION. Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:
(1) the duty of care, control, protection, and reasonable discipline of the child;
(2) the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
(3) the right to consent for the child to medical and dental care not involving an invasive procedure; and
(4) the right to direct the moral and religious training of the child.
For more significant decisions regarding the child, the Texas Family Code outlines these conservatorship rights as follows:
RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR. Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights:
(1) the right to designate the primary residence of the child;
(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures;
(3) the right to consent to psychiatric and psychological treatment;
(4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
(5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(6) the right to consent to marriage and to enlistment in the armed forces of the United States;
(7) the right to make decisions concerning the child’s education;
(8) the right to the services and earnings of the child;
(9) except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
(10) the right to:
(A) apply for a passport for the child;
(B) renew the child’s passport; and
(C) maintain possession of the child’s passport.
The Court most commonly allocates the conservatorship rights outlined in Section 153.132 as one of the following:
As you can see, the conservatorship rights can be fundamental in deciding how to raise a child with special needs. If parents are “true joint” and not on the same page regarding the child’s diagnosis, it could be detrimental. For example, a child on the autism spectrum may need a 504 education plan or an individual education plan (IEP). If one parent does not believe in the diagnosis, he or she may block the decision of the parent attempting to receive accommodations for the child. Or another example; if a child has a behavioral disorder and a psychiatrist recommends medication, an uninvolved, uninformed, or misinformed parent may try to block the medication.
Fortunately, the Court can allocate conservatorship rights and—if appropriate—modify the child custody order. Furthermore, in the most extreme situations, the Court can even limit a parent’s rights under Sections 153.073 and 153.074. This includes the right to receive mental and physical health information, consult with providers, and make non-invasive medical decisions.
Finally, a Court may order injunctive relief to address a child’s special needs. Often, this entails specific court orders that order the parties to either affirmatively do something or refrain from doing something to address the child’s needs. Some examples include:
Suppose a parent violates the injunctive relief of the Court. In that case, this could result in a change of conservatorship rights and possession and access, in addition to other remedies at law.
Raising a special needs child is a blessing. But it is also a challenge. It is even more challenging raising a special needs child in two different households. Fortunately, a court order can address many concerns and situations that come up in the journey. It is critical that, when going through a divorce or child custody situation, you and your advocate explain to the Court the need for a well-crafted court order that addresses the unique aspects of the child’s life and care.