Divorce Court Cannot Order a Parent to Take Meds or Go To Treatment

Facts: Father and mother married 09/06/05. They had child on 5/22/06. On 4/17/07, father filed for divorce.  Both mother and father sought joint custody, but only mother sought designation as the conservator with right to designate child’s primary residence. Evidence at trial showed that father had suffered from bipolar disorder and drug abuse since he was a teenager. Father had a history of starting and terminating treatment. At the time of marriage, father was not taking medication or attending counseling. In 12/05/07, father relapsed and used methamphetamine twice. Father restarted therapy and medication but did not take his medication consistently. On 05/29/08, trial court divorce decree appointing father and mother JMC and giving mother the right to establish the child’s primary residence. The decree required father to continue taking his medication, going to counseling, and attending AA meetings. Father appealed.

The court of appeals found the divorce judge committed error and reversed the decision.

Opinion: Although trial court had discretion to require father to continue treatment as a condition of possession and access, it could not simply issue stand-alone orders to father. Because complying with the orders was not a requirement for father to maintain his parental rights, the orders were not related in any matter to the child. They were, therefore, an abuse of trial court’s discretion.

Comment: Here, the court order failed to provide any link between the father’s access to the child and the requirement of continued medication and counseling. The father argued that the requirements pro-vided in the decree violated his rights as an “incapacitated person” under the Texas Probate Code. The Amarillo Court agreed. Another argument that father could have made here is that the court’s order requir-ing him to take medications violates his constitutional rights. Under Washington v. Harper, 494 U.S. 210 (1990), a person has a significant constitutionally protected liberty interest in avoiding the unwanted admin-istration of antipsychotic drugs. In order for the government to require someone to take medication against their will, there has to be a finding, by clear and convincing evidence, that the person is a danger to himself or others and the treatment is in the patient’s best interest. See Tex. Health & Safety Code §574.106(a-1). So, although a judge can enter orders affecting the child based on the parent’s decision to take or not take medication, the court cannot order the parent to take the medication outside of an involuntary suit under the Texas Health and Safety Code. M.M.O.

In re Marriage of Swim, __ S.W.3d __, 2009 WL 1940877 (Tex. App. — Amarillo 2009, no pet. h.)