The recent Florida Circumcision case brought to mind two points.  Recap:  Dennis Nebus wanted his son circumcised. Heather Hironimus did not. Thus the battle ensued before the Florida Court. Lots of money, lots of jail time and lots of anguish over this issue.

Mediated Settlement Agreement (“MSA”): Dennis Nebus and Heather Hironimus signed an agreed parenting plan wherein Heather agreed to have her son circumcised.  At some point after, Heather changed her mind and decided that she would not agree to the circumcision of her son. Thus the legal battle ensued. In Texas, the Agreed Parenting Plan would be in a document called a Mediated Settlement Agreement — an “MSA.”  In Texas, once a MSA is signed by the parties, the Court has no discretion but to enforce the MSA.  There is no changing of mind, there is no going back.  Even if the Court was of the opinion that the terms and conditions of the MSA were not in the best interest of the child, the Court may not change it.  The Court’s only power is to enforce it.  Thus, if Dennis and Heather were in Texas and had signed a MSA where the parties had agreed that the child would be circumcised the result would have been the same, the MSA would be enforced and the child would be circumcised.

Exclusive Right to Make Medical Decisions.  In cases involving children, the parties will be awarded the “rights and duties of parent conservators.”  In Texas, all parents will be awarded joint managing conservatorship of their child(ren) – absent other circumstances showing that it is not in the best interest of the child (drug use or family violence, for example).  One of those rights is the right to make medical decisions. This right can be exclusive to one party or jointly exercised.  If Dennis had been awarded the exclusive right to make medical decisions involving his child and he wanted his child circumcised, then Dennis’ exclusive right prevails and the child is circumcised.  If the right to make medical decision required the agreement of both parties, then Heather’s disagreement would mean that the child would not be circumcised.

Under the rights and duties of an Order involving a child, the first four rights equal to both parents is the right to receive information involving the medical condition of a child.  These are set out here:

“IT IS ORDERED that, at all times, MOTHER and FATHER, as parent joint managing conservators, shall each have the following rights:

1. the right to receive information from any other conservator of the child[ren] concerning the health, education, and welfare of the child[ren];

2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child[ren];

3. the right of access to medical, dental, psychological, and educational records of the child[ren];

4. the right to consult with a physician, dentist, or psychologist of the child[ren]; . . . ”

These rights as set out above are standard across almost all Texas orders.  The operative language, however, is as follows:

” . . . the [exclusive right/right subject to the agreement of the other parent conservator, OR independent right] to consent to medical, dental, and surgical treatment involving invasive procedures; . . .”

This is the language that counts.  Notice that there are three options.  The Order language can be written as one of the following —

  • “the exclusive right to consent to  medical, dental, and surgical treatment involving invasive procedures” Here, if Dennis has the exclusive right to make a medical decision then the child is circumcised.
  • “the right subject to the agreement of the other parent conservator to consent to medical, dental and surgical treatment involving invasive procedures.” Here, Heather opposes circumcision and in that regard the child is not circumcised.  Very often this language will have a “tie-breaker” provision.
  • “the independent right to consent to medical, dental and surgical treatment involving invasive procedures.”  Using this language means, either parent can consent to medical treatment involving invasive procedures.  Thus, Dennis prevails and the child is circumcised because either parent can consent.

In 20 years of practice in Texas, I have never seen a “circumcision issue” arise and I know of no other lawyer that has.  You are more likely to see a scenario like this with regards to a tonsillectomy, for example, or psychological treatment.  Fact of the matter is, most parents have no interest in litigating circumcision issues but have only the best interest of the child at heart.

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