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How do the courts made decisions on custody of a special needs child? I just left my husband of 9 years. We have a 6 yr old son

Saint Petersburg, FL |

He was diagnosed when he was 2. I have been always been the one who has taken/(partciapated) him to his therapy appointments, doctor appointments, school etc. I want our son to live with me, with me being the Primary Custodian, and he can go to his dads every other weekend. He does not handle change well at all, and any minor change will cause huge tantrums. His dad wants us to have a rotating schedule. Husband and I had several mutual friends, but the all of them were friends with me first, then became friends with him through me. All of these people are willing to come to testify on my behalf. Since these people were friends with me first, will the judge even take their testimony into consideration, or will they be considered "bias"?

I know I need an attorney but, I just spent a ton of money on moving into a new place, and I won't have a retainer for a couple of weeks. In the meantime I want to prepare, and gather everything that I need to so when I go see an attorney I can see what my chances are in getting the schedule that is best for my son. Neither of us have filed for divorce yet, I'm trying to hold him off until I have the $ for an attorney. We both left the marital home (which was rented). I moved into my own 2 bedroom house, and he moved in with family members (2 adults, and 3 other children).

Attorney Answers 4

Posted

The courts consider that a child needs both parents. With a special needs child, his therapists and doctors will be the most important, particularly his therapist in talking about change. Divorce is a change, and there may need to be some additional work with the therapist to help him handle the change. It may or may not include the schedule that either you or your husband envision, or it may be something different altogether. Your friends' testimony may have some value, but it will be the professionals that will have the most weight. You have a variety of options as to how to approach this, and you will need to discuss those with our attorney. You will most likely be required to have a mediation before going to court, so talking to your child's therapist and doctor's about what is going on and having some suggestions from them is a good idea before you go see your attorney.

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Asker

Posted

Thank you for the advice. Does the court also take the living situations into consideration? There are a total of 3 adults and 5 children sometimes 6 children, living at his home. I agree that he needs both of his parents and his bond between both of us is high. My ex is very unreasonable, and bitter about the break up, and I know his reason for wanting rotating is due to the amount of child support he will have to pay.

Heather Morcroft

Heather Morcroft

Posted

That is not uncommon. Chapter 61.13 of Fla. Stat. sets forth many of the standards you are interested in. It is too large to copy all of it, but you can find it at www.findlaw.com, go to the part for professionals. Here are the factors for determining timesharing/custody: (3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent's relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to: (a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required. (b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties. (c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent. (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. (e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child. (f) The moral fitness of the parents. (g) The mental and physical health of the parents. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. (j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things. (k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime. (l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child. (m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child. (n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect. (o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending l

Asker

Posted

Okay thank you. What is not uncommon? His living situation?

Heather Morcroft

Heather Morcroft

Posted

No, trying to do 50/50 rotation to avoid child support. But he still might not in this case, because you have reasons possibly to go outside the guidelines with your son's special needs, so unless he is also splitting all of that.....seems unlikely.

Posted

I agree with my colleague's answer. Since your spouse wants rotating schedules it seems he will be somewhat flexible when it comes down to finalizing the timesharing. Feel free to contact either attorney Morcroft or myself.

Gina Hunter

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Posted

My colleagues have provided you with sound advice. The main point, in all of this, is doing what is best for the child. You need to discuss with his doctors and therapists what will be in his best interests and develop a transition plan that will work for the child. Given that the father wants a rotating schedule, it seems as though he is willing to be flexible. You will certainly need an attorney's assistance to advocate for your position with your dissolution and custody issues. Good luck.

When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel.

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Posted

custody decisions are based upon the overall best interests of the child, per Florida Statute Chapter 61. Contact my office for free consultation.

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