Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Going To Jail To Protect Your Child

Occasionally, there’s a case where a parent has to choose between the going to jail to protect his or her child and obeying a lawful court order.


A reader writes: “I have joint legal and physical custody of my children. My daughter has been diagnosed with depression by a psychiatrist who prescribed an anti-depressant. My ex-husband is vehemently against medicating mental illnesses, preferring a ‘pull yourself up by your bootstraps’ treatment. Because of the possible urgency, nature, perceptions, and risks of the illness, I don’t have the time to go through the process of modifying my divorce decree.”


I understand your urgency and your reluctance to begin a protracted legal process, but there is no long-term solution without doing so. Because you share legal custody with your “ex”, neither of you can veto the medical decisions made by the other. He can’t prevent you from medicating your daughter when she is with you, but neither can you force him to provide the medicine when she is with him.


Your email does not mention whether you believe that your child’s condition is life-threatening, such as being depressed to the point of being suicidal. But if it were, you would be fully-justified as a mother, if not legally, to taking some strong pre-emptive steps to protect your child until you get your day in court.


In fact, even if not life-threatening, but if the depression is significantly impacting your child’s health and well-being and you do not trust your ex-spouse to provide her with her anti-depressant while in his care, I would urge that you do the following:


  1. Withhold your little girl from your ex-husband until such time you can be totally confident that he will comply with the treatment prescribed by her psychiatrist, or until you reach a satisfactory resolution through the court. By doing so, you will be in violation of your court-mandated custody schedule and this advice comes to you from me not as a lawyer, but as a mother.


  1. Call the Child Abuse/Neglect Hotline to report your former husband’s refusal to provide the medication. Tell them that you believe this to be neglect of your daughter and ask them to investigate. Perhaps your “ex” will admit his unwillingness to provide the medication and this information will be helpful to your court case.



  1. Immediately, file a motion to modify your parenting plan with the court. Minimally, you should seek sole legal custody, making you the final decision-maker on all major issues affecting your child.


However, if you don’t believe your former mate would cooperate with the medication even if you were awarded sole legal custody, then you should seek a custody schedule that would limit your former husband’s time with your daughter to periods when she will not need to be given her medication.


  1. Importantly, when filing, be sure to describe your husband’s refusal to provide the medication as behavior that you believe is harmful to your child. This will empower the court to appoint an independent lawyer to represent her interests in the case. This lawyer will investigate your child needs and present his/her findings to the judge, presumably supporting your beliefs about her needs and your allegations about your “ex’s” attitude.


Prepare yourself, though, for the possibility that a police officer may show up at your door asking you to turn over your daughter for delivery to her father. Tell them of the situation and that you have both made a “hotline call” and filed a motion to modify.


If the police still insist on receiving your daughter, you don’t have to comply and they will not have the authority to enter your home and seize her for purposes of enforcing your parenting plan. It may be the moment when you have to decide if it’s worth going to jail to protect your child. I know where I’d come out.