In order to understand how child custody is different for children with special needs, it is first helpful to know how child custody operates in general.
Child custody is a phrase used in family law that refers to the legal rights and responsibilities that a parent has to care, control, and provide for a child. Usually, child custody disputes arise from court cases related to a divorce, legal separation, or sometimes, child neglect.
There are two kinds of child custody: legal custody and physical custody. Legal custody means having the right to make important decisions about a child, such as education, medical care, religion, and discipline. Physical custody refers to the physical location of where the child lives.
In a divorce proceeding, courts will often award joint custody to the parents of a child. This means that the parents will split the time they have to spend with the child, according to a visitation schedule. The visitation schedule can be determined by either a parenting plan or a court issued child custody order.
Special needs children are children who have unique medical, mental, or emotional health issues that require special attention. Typically, the unique care that the child needs can have a dramatic impact on deciding which parent to award child custody.
For instance, if the child has a physical impairment, the court may focus on whether the parents’ homes are easily accessible and safe for the child.
In contrast, if the child has mental or emotional health issues, the court may focus on minimizing the disruption to the child’s life and attempt to keep the child as close as possible to their current medical service providers.
In a child custody decision, the court issues an order based on guidelines known as, the child’s best interest standard. Under the child’s best interest standard, the court addresses several factors to figure out the best placement for the child.
Since children with special needs typically require a greater level of care, the court will look to additional factors when deciding special needs custody. Some of these include:
- Each parent’s ability to care for the special needs of the child, e.g., does the parent have the time and money to provide the necessary level of care?;
- Each parent’s ability to provide medical care for the child;
- Whether the child is subject to special orders or instructions from medical care providers;
- Whether the child will have proper access to each parent’s property, e.g., wheelchair ramps, bathrooms equipped for special needs, etc.;
- How close the parents are located to suitable medical care locations that have to be nearby for the child’s needs;
- How the child will adjust to a new home, school, community, or religious instruction, or if they are better off staying with the current parent in the same location;
- If the other parent in the new location is able to handle the child’s special needs better, then assessing the ability of the child to be able to adjust to a new home, school, community, or religious instruction;
- The location of the child’s current medical care providers; and
- How well the child’s parents communicate with each other, and how their relationship affects the child.
In some cases, the child may need a special caregiver to be present during custodial sessions. In other cases, the court may have to appoint custody to a designated legal guardian for the child. For example, if neither parent is deemed fit or capable of caring for the child properly, then a legal guardian may be assigned.
Thus, as demonstrated by all of the above factors, the main difference of a child custody dispute that involves a child with special needs is the factors the court uses to determine custody arrangements.
Although a child’s best interests will always be put first in custody cases, the court has to make the factors for medical attention and health of a special needs child the primary focus of their decision.
In general, handling child custody disputes can be very difficult. When the dispute involves a child that requires special needs care, it can be even more challenging. Thus, if you are part of a claim that contains a child custody dispute, then consulting a skilled child custody lawyer can prove to be extremely helpful.
An experienced attorney can give legal advice, gather evidence, interview witnesses, provide representation, and help to negotiate visitation schedules. They also can assess what rights you have as a parent and if necessary, provide assistance with modifying a child custody order.
Regardless of what stage you are in of your child custody dispute, hiring a qualified child custody lawyer is important. This is because these decisions not only impact your child’s future, but also in a special needs case, they can make a difference that affects your child’s health.