Broken Bones and the Parental Presumption

This insightful guest post is from 3L and current Family Law student Moriah Schmidt:

Imagine your child has broken an arm or a leg and you must rush him or her to the emergency room. Many thoughts rush through your head – how bad is the pain? Will insurance cover everything? Should I have been more watchful? You would hardly expect to ask yourself, “Will they take my child away?”

There is a legal presumption in the United States that it is in the best interests of a child to be raised by his or her natural parent(s). Sometimes this determination compromises the safety of a child by placing the child back in the home of an abusive or neglectful parent. Nonetheless, the natural parent presumption is invaluable to making determinations of what to do with a child in an emergency situation. It is difficult to know the entire domestic situation in one encounter, no less so if that encounter is in the emergency room, but the parental presumption works to prevent a child from being wrongfully taken away – and it is particularly important during what would already be a frightening experience.  In fact, I have had personal experience in this regard.

One rainy afternoon when my little brother was two, he slipped on a wooden walkway and broke his femur. My parents rushed him to the emergency room where they discovered the nature of his injury required treatment at a children’s hospital some distance away. The hospital required transportation of my brother on a bed that was fitted for adults and caused him great suffering, since the strap went directly over his broken femur. In trying to do what was best for his son, my dad told them he would transport my brother in his car seat, supporting his leg. The hospital personnel were distrustful and summoned a police officer.  That officer let them go without a problem, seeing my dad had ensured my brother was safely secured and comfortable. Upon arrival at the children’s hospital, personnel asked my parents questions about my brother’s injury and why they insisted on transporting him as they did. My parents had to face this tense situation while dealing with a crying toddler and a long night of waiting. They had no history of child abuse and my brother had never been hospitalized; this likely enabled them to leave with my brother after he was casted. A lawyer should look for those indicators if called on to assist a parent who fears that his child may be taken away.

Child abuse is an issue far too common and should be taken most seriously. However, the parental presumption protects those parents who do want what is best for their child and protects the child as well; parents generally know the child’s pain tolerance, medical history, allergies, and needs better than anyone else. Especially in a high-stress situation, the presumption that a parent knows what is best for the child can truly be a lifesaver. Broken bones are scary, and at the same time the law does not want to add to a child’s fear by removing him from the care of his parents without proof sufficient to rebut the parental presumption.

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