Navigating Temporary Child Custody During Hospitalization

If I can’t take care of my child, who will? A parent who is hospitalized, especially for more than a few days, often asks themselves this question.

A hospital stay, whether due to an illness, an accident, or a medical emergency, can interrupt your custody routine. Not only can this interruption take an emotional toll, but it can take a legal toll, too, as navigating temporary child custody during hospitalization can be challenging.

This guide outlines how temporary custody works in Texas if you’re hospitalized, how you can prepare, and what to expect if emergency decisions need to be made.

What is temporary custody?

Temporary custody is a short-term arrangement where someone other than the primary parent or guardian assumes the legal right to care for the child. The person with temporary custody is often the other parent. Conversely, if the other parent isn’t suitable or available, usually a close relative steps in. Arrangements can be made either by a court order under Section 105.001 of the Texas Family Code or through an informal agreement between the parents.

Legal rights of the other parent

Navigating temporary child custody during the hospitalization of one parent may be more straightforward if the other parent has legal rights. In these cases, a parent with joint custody may automatically have the right to care for the child. However, this right is based on the details of the existing custody arrangement.

When the other parent has custody rights

The custody order will likely hold the answer. For instance, if one parent is unavailable, the other parent may explicitly be designated as the alternate caregiver. Unless limited by court order, if the hospitalization is expected to be brief, the other parent may care for the child by mutual agreement, as permitted by Texas Family Code § 153.073, which allows parents to confer before deciding the welfare of the child.

When the other parent is not involved or is unfit

If the non-hospitalized parent doesn’t have custodial rights, is deemed unfit, is unavailable, or cannot be located, the situation may become a bit more complicated. Unlike when the other parent can step in, a formal temporary conservatorship order may be necessary to grant someone else the legal right to care for the child in the meantime. Commonly, a grandparent, sibling, or another close relative is granted temporary custody.

Planning ahead with a temporary guardianship agreement

One of the best ways to prepare for unexpected hospitalization is to have a plan in place. In Texas, you can execute an authorization agreement to achieve this. This legally binding document allows you to authorize someone you trust to take care of your child if you’re temporarily unable to do so.

What is temporary guardianship?

A temporary guardianship allows a trusted adult to act as a caregiver for your child. The caregiver can make decisions regarding schooling, medical care, and daily needs. The agreement can take effect upon your admission to the hospital and remain in effect until specified or for six months default.

Texas offers two methods for establishing temporary guardianship. One method is a Chapter 34 Authorization Agreement (a notarized, out-of-court delegation of certain parental powers), and the other is a court-ordered guardianship under the Estates Code in a probate/guardianship court. Either way you decide to proceed, as your circumstances change, parents can move to revoke or modify as necessary.

How is temporary guardianship different from temporary custody?

It’s essential to know the difference between temporary guardianship and temporary custody. Both arrangements include someone other than you caring for your child, but they aren’t the same.

The court is almost always involved in a temporary custody case. The other parent may also be involved if there’s an ongoing custody dispute or an emergency. On the other hand, if the custodial parent or parents have agreed upon temporary guardianship, the court may not be involved unless a dispute arises.

Unlike guardianship, temporary custody grants the caregiver specified rights regarding the child’s welfare. Additionally, a grant of temporary custody may impact future custody decisions, while a grant of temporary guardianship typically doesn’t.

What happens without a plan for temporary custody or guardianship?

If you find yourself in the hospital without a custody plan, guardianship agreement, or available co-parent, your options are probably minimal. Depending on the severity of the situation, the decision of your child’s caregiver may result from emergency court intervention if the child is left without proper adult supervision.

How hospitals and courts handle custody in emergencies

Hospitals can’t dictate custody. Courts, on the other hand, have this authority. Hospitals are limited to bringing Child Protective Services (CPS) into the fold if a child is left unattended or appears to be at risk. After this, it falls to the court system to determine who gets temporary custody.

The role of Child Protective Services

CPS usually becomes involved when the hospital or police reach out to arrange temporary placement for your child. The agency’s goal is to keep children safe while keeping the family together. CPS can vet relatives for temporary placement or, in dire cases, initiate foster care.

Emergency custody hearings

Section 262.102 of the Texas Family Code allows the court to grant an emergency temporary order if it is proven that the child needs immediate protection. In this type of hearing, you can expect a judge to evaluate the:

• Hospitalized parent’s medical condition;
• Child’s needs;
• Suitability of the temporary caregiver; and
• Risks posed by current, former, and/or potential caregivers.

These hearings are customarily expedited.

Why documentation matters

It’s not always practical to carry a copy of your custody agreement, but having one readily accessible can be helpful. You may also want to ensure that a trusted family member has access to or a copy of it. The same goes for an authorization agreement. If you have a temporary guardianship in place, the agreement should clearly state:

• How long the guardianship will be in place
• What specific powers are granted to the guardian
• The reason for the guardianship (e.g., hospitalization)

Courts and social workers will review your documentation and evaluate your current situation when determining who will temporarily care for your child.

Get support before child custody becomes a crisis

Dealing with child custody, temporary or not, can be difficult. Managing health concerns or an unexpected hospital stay on top of custody can easily overwhelm a parent. Preparing now can make a big difference later.

Consider speaking with a Texas family law attorney, as they can:

• Draft or update a temporary guardianship agreement
• Seek modification of your current custody order to include emergency care provisions
• Prepare for possible emergency custody hearings
• Navigate communication with CPS, if needed

You don’t have to figure this out on your own. You can create a plan that helps keep your child safe and give you peace of mind.

To schedule an initial consultation, please call us today or complete our contact form. Our team of qualified legal professionals in San Antonio is here to help you feel more confident that your child will be cared for, no matter what happens.