Can Differences On Birth Control Cause A Change In Custody?

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody on Friday, May 3, 2013

Many of you have probably followed the legal controversy involving the so-called “morning after pill,” a medication which taken within 24 hours of unprotected sex prevents the fertilization of an ovum. For a long time, this medication was available only through a prescription; now, the FDA has determined it is safe to issue over-the-counter, and may be purchased by girls as young as fifteen.

One area in which parents certainly disagree has been birth control and premarital sex. If divorced parents cannot agree about whether their daughter can have access to birth control, how do the courts handle the issue? Could it lead to a change in legal custody?

Reproductive choices involve two distinct areas of parental control – medical care and religious/moral teachings. On the one hand, obtaining birth control pills involves health care decisions, usually best kept between a patient and a doctor. The Constitution protects the right of both an adult and a minor to obtain birth control and exercise reproductive freedom; with regard to minors, the Constitution has allowed states to require some type of parental notification or consent in some of these areas, usually when it involves terminating a pregnancy. On the other hand, obtaining birth control involves religious and moral teachings and values. Some religions explicitly prohibit certain types of reproductive actions; some parents have strongly held beliefs about when children should date, consider having sex or utilize birth control.

If one parent has sole legal custody, that parent has the final say on health care decisions and the religious upbringing of the child, though the Constitution protects the right of the non-custodial parent to expose the child to his or her religious beliefs and worship practices. So, in a sole legal custody situation, one parent has the final say. In a joint custody situation, the parents need to agree, and if they cannot, the issue often goes to mediation. It may seem strange to have two parents mediating birth control access for their teenager, but that is what the law recommends.

What if the parents disagree after mediation? Could one parent succeed in motioning for a modification of legal custody? Missouri has little guidance in case law on this issue specifically, but other cases suggest that the parent seeking a change would have to show that the behavior in question poses a risk of harm to the child or is so contrary to her best interests as to warrant a change.

We can see some interesting and difficult situations arising. For example, most scientific literature and the medical community recommend knowledge of birth control and reproductive choices because of the public health risk of unprotected sex and the cold reality that minors and hormones result in often poor, impulsive choices. So, a parent arming a child with knowledge and protection would only be appearing to further the best health interests of the child. After all, schools provide sex education. But if a child is being raised in a strict religious environment respected by only one parent, how can the court honor that choice and the health issues at the same time? As you can see, this area becomes ripe for all sorts of competing constitutionally protected liberties, and a court will want to avoid these issues if at all possible. Certain cases could arise where the risk of harm is so obvious that lack of protection would amount to neglect. But generally, a court will opt out of ruling on this reason alone as a basis for changing custody.

When couples part, preparing a Parenting Plan that accounts for critical decisions in the moral upbringing of the child in teenage years rarely get addressed in concrete and thorough terms, usually because anticipating every possibility is too difficult. However, for couples who may have trouble seeing eye-to-eye on these types of issues, having a Parenting Plan which they must agree upon together would avoid big conflicts at the worst possible times. Parents who have strong beliefs about moral issues should seek to have these issues fleshed out and put in a final Parenting Plan.

If you have questions about birth control and custody issues, contact us – we can help.

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