Custody of Special Needs Children

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 What is Child Custody?

In order for an individual to understand how child custody differs for children who have special needs, it may first be helpful to understand how child custody in general operates. Child custody is a family law concept that refers to the legal rights and responsibilities that parents have to care, control, and provide for a child.

Typically, child custody disputes arise from court cases which are related to:

There are two different categories of child custody, legal custody and physical custody. Legal custody refers to the right to make important decisions regarding a child, which includes:

  • Education;
  • Medical care;
  • Religion; and
  • Discipline.

Physical custody refers to where the child resides, typically with which parent the child resides. These issues typically arise in legal separation and divorce proceedings.

In divorce proceedings, a court will often award joint custody to the two parents of the child. This means that the parents will split the time which they have to spend with the child, typically according to a visitation schedule.

A visitation schedule may be determined by either a parenting plan or a court issued child custody order. It is important to note that visitation schedules may be updated as circumstances surrounding the child change, such as changes in age or activities.

What are Special Needs Children?

A special needs child is a child who has unique issues which require special attention, including:

  • Medical issues;
  • Mental issues; or
  • Emotional health issues.

Usually, the unique care which the child requires has a dramatic impact on determining which parent is awarded child custody. For example, if a child has a physical impairment, a court may focus on whether the homes of the parents are easily accessible and safe for the child.

In contrast, if a child has emotional or mental health issues, a court may focus on minimizing the disruption to the child’s life. This will include considerations such as keeping the child as close as possible to their current medical service providers.

Are Child Custody Requirements Different for Special Needs Children?

When determining child custody issues, a court will issue an order based upon guidelines called the child’s best interest standard. Pursuant to the child’s best interest standard, a court will address several factors in order to determine the best placement for the child.

Because a child with special needs will typically require a greater level of care, a court will examine several additional factors when determining custody for a special needs child, including:

  • The ability of each parent to care for the special needs of the child, which includes whether or not the parent has the time and money to provide the required level of care;
  • The ability of each parent to provide medical care for the child;
  • If the child is subject to any special instructions or orders from their medical care providers;
  • If the child will have proper access to the property of each parent, which may include wheelchair ramps and specially-equipped restrooms;
  • The proximity of the parents to the suitable medical care facilities which are required to be nearby for the needs of the child;
  • How the child may adjust to a new location or if they are better off remaining with the current parent in the same location, which may include:
    • homes;
    • schools;
    • communities; or
    • religious instruction;
  • The location of the current medical providers of the child; and
  • How well the parents communicate with one another and how their relationship affects the child.

In some instances, a child may require a special caregiver to be present during custodial sessions. In other situations, a court may be required to appoint custody to a designated legal guardian for the child.

For example, if it is determined that neither parent is fit or capable of properly caring for the child, a legal guardian may be assigned by the court. As previously discussed, the main difference between regular child custody disputes and those involving special needs children is the factors which the court uses to determine custody arrangements.

Although the child’s best interests will also be the first consideration in custody cases, a court is required to make the factors of medical attention and health of a special needs child be the primary focus of their decision.

What is the Child’s Best Interest Standard?

One of the biggest issues in legal separation and divorce cases is which parent will get custody of the children. It is always best, of course, if the parents are able to come to an agreement together which best suits their family.

If, however, the parents cannot come to an agreement, a decision is made by the court. In order to determine child custody issues, a court must use the child’s best interest standard.

Although there is no perfect formula to determine what is in the child’s best interest, the analysis typically involves a variety of factors which are tailored to the particular child in the case. In these cases, the child’s interest prevails over the desires of the parents.

In general, the factors which are examined pursuant to the child’s best interest standard include:

  • The child’s background, including their:
    • sex;
    • age; and
    • personal health characteristics;
  • If the child is at least 12 to 14 years of age, many courts will consider their preferences as an important factor, so long as they demonstrate a certain level of maturity;
  • Environmental factors, such as:
    • the quality of education in the school district of each parent;
    • the safety of the neighborhood of each parent; and
    • he proximity to other extracurricular activities;
  • Each parent’s physical and mental health;
  • The ability of each parent to provide emotional and financial support for the child while the child is in their care;
  • The stability of the lifestyle and background of each parent;
  • The existence and level of attachment to other siblings or important family members in the home; and
  • The commitment of each parent to facilitate an ongoing and healthy relationship between the child and the other parent.

Do I Need a Lawyer to Help with a Special Needs Custody Issue?

It is important to have the assistance of a child custody lawyer for any issues, questions, or concerns you have regarding a special needs custody issue. Child custody disputes can be very difficult for all parties involved.

When custody disputes involve children who require special needs care, it may be even more challenging. Therefore, if you are involved in a claim which involves a child custody dispute, it may be very helpful to consult with an attorney.

Your attorney can assist you in many ways, including:

  • Giving legal advice;
  • Gathering evidence;
  • Interviewing witnesses;
  • Providing representation; and
  • Helping to negotiate visitation schedules.

Your attorney can also advise you regarding what your rights are as a parent and, if required at a later time, assist you with modifying a child custody order.

Regardless of where you are in your child custody dispute, it is very important to have the assistance of an attorney. The decisions which are made in these cases impact the future of everyone involved and, in the case of a special needs child, it may make a difference which affects your child’s health and well-being.

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