Custody Battles When a Parent Has a Brain Injury

Texas Court of Appeals. (Wikipedia.org)

In a May 2021 divorce proceeding, the Court of Appeals of Texas affirmed the lower court’s divorce decree granting the mother the right to determine the child’s primary residence even though the mother was recovering from a brain injury. Although the father argued the mother’s brain injury should affect the mother’s rights to her child, the court did not agree. Espe.

In this case, the mother filed for divorce in March 2017. She then sustained a serious brain injury in a car accident in October 2017 that required over four months of rehabilitation.

The child custody battle included the father’s argument that it was not in the best interests of his children to live with their mother because she had not fully recovered a traumatic brain injury. Court-ordered psychologist Dr. Stephen Thorne testified that the mother suffered from depression and anxiety but was now working with a therapist and was progressing in her brain injury recovery, so he believed she could meet a child’s basic needs.

During the hearing, the mother described the father as controlling and told the lower court that they argued weekly and that he was often unresponsive to her questions about the child’s school and activities. Dr. Thorne also opined that his psychological evaluation of the father revealed traits of obsessive-compulsive personality disorder in the father, leading to poor communication between the mother and father. Dr. Thorne recommended that the father go to counseling, but the father had not attended counseling by the time of the appeal. Dr. Thorne also testified that had he known of the father’s previously undisclosed DWI arrest at the time of his evaluation, he would have had concerns about the father’s propensity for alcohol abuse.

At the conclusion of the hearing, the lower court’s divorce decree gave the mother the exclusive right to designate the child’s primary residence and make medical, psychological, and educational decisions for the child after “meaningful consultation” with the father. The lower court found that this was in the child’s best interest. The decree also awarded the father access to the child pursuant to a standard possession order.

On appeal, the father argued that the lower court abused their discretion in granting the mother these rights, especially the right to designate primary residence. The court concluded that the evidence was sufficient to support the conclusion that the father should have access to the child, but that he was not entitled to equal periods of physical possession of the child so the lower court did not abuse its discretion.

The issue explored in this case — how a brain injury should affect a parent’s custody rights — is being litigated in many jurisdictions. In some cases, the TBI is a factor in terminating custody rights. As one parent has explained: “I was in a car accident . . . They said I had a traumatic brain injury (TBI) . . . I was told later that while I was in the hospital, I signed papers giving up my rights and custody of my children to my ex-husband saying I was unable to care for them. I have no recollection of this at all. I eventually healed up enough to go home. Physically, at least . . . You never really get “better” after a TBI.”

Even if they don’t lose custody, research suggests that brain injuries can disrupt marriages and ability of parents to care for their children. In the United Kingdom, Headway (a brain injury advocacy organization) has developed guidance for Parenting After Brain Injury.

Citation: Espe v. Castellaw, 2021 WL 2021137

Keywords: Texas, divorce, child custody, brain injury, cognitive disability, traumatic brain injury (TBI)

This post is the 116th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.

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at Mass General Hospital, Harvard Medical School

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Center for Law, Brain & Behavior

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at Mass General Hospital, Harvard Medical School

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