Written by attorney Margaret Susan Price

Physical Custody and the Special Needs Child in Divorce

Physical custody means where the child lives. There are two main possibilities: the two parents will share joint physical custody, or one parent will have primary (also called sole) custody and the other will have visitation.

Custody should be decided based upon what is best for the child. To do this correctly, you must consider many factors. When you have a special needs or disabled child, you have even more factors to consider than parents of a typical child.

Over many years of being a divorce lawyer and the parent of a child with autism, I have compiled a lengthy list of factors you should consider when dealing with the issue of where the child will live (physical custody).

Custody factors to consider:

· Who has been the primary caregiver for the child?

· Whose schedule is most workable for taking care of the child?

· Which of you really wants to be most involved with the child?

· If the answers to those questions are “both parents", consider Joint Custody.

· Do either of you travel frequently?

· Do either of you have long or unusual work schedules?

· Are either of you studying for a diploma or degree?

· Do you and your spouse have very similar goals, interests and values?

· Are you and your spouse able to work together to resolve problems?

· Do you and your spouse agree on the religion of the child?

· Do you and your spouse agree on the education plan for the child?

· Do you and your spouse agree on medical care for the child?

· Do you and your spouse agree on extracurricular activities for the child?

· Are you or your spouse likely to have a boyfriend or girlfriend in the picture? If so, how will this impact on time and relationships with the child?

· How will grandparents be involved in the child’s life?

· Are both you and your spouse good, competent, responsible parents?

· What visitation schedule will work best for everyone concerned?

· Where are you, your spouse and the child likely to be living after the divorce?

· Will the child be required to change schools if she lives with you or with your spouse after the divorce?

· With whom does your child want to live after the divorce?

Before the custody issues are resolved, you must also evaluate visitation, as it goes “hand-in-glove" with custody. The following issues need to be considered when determining what type of custody and visitation will be best for the child.

Visitation factors to consider:

· Walk through all the questions of Custody consideration, in the context of visitation.

· How far will the noncustodial parent live from the custodial parent’s home, from the child’s school and from the noncustodial parent’s work? This will affect whether mid-week overnight visitation is feasible.

· At what time does the child need to be picked from day care or after school activities, and from where will that parent be driving to pick him up?

· What is the child’s religious observance or religious training schedule?

· Has the child had input as to the visitation schedule? The appropriate amount of input will depend upon the child’s age and maturity.

· Does the custody and visitation schedule allow the children sufficient time to spend time with their friends, grandparents and other relatives?

· Does the holiday schedule accommodate travel time to visit out of town relatives?

· Is the schedule disruptive of the child’s sports leagues, music lessons, dance classes? Usually these issues can easily be worked out simply by good communication between the parents.

· Does the summer schedule allow each parent sufficient blocks of time for travel?

· Does the summer schedule prevent the child from participating in summer camps or sports leagues and tournaments?

· Is the child being shuffled around too much? There are many ways to work a schedule in order to minimize the number of times the child goes back and forth between parents, while not reducing the noncustodial parent’s parenting time with the child. Does the child struggle with transitions?

· Is the child living out of a suitcase?

· Does the child have a clear sense of where “home" is?

· Does the child feel as though she still has two parents, not just one parent and a visitor?

In addition to evaluating all of these factors, there are other considerations to be addressed when you are divorcing and your child has special needs.

Special needs custody and visitation factors

· Which parent has been the primary caregiver since the special need or disability was diagnosed?

· With whom has the child bonded? Sadly, sometimes a parent does not bond with their disabled child.

· What has each parent’s response been to the child’s special needs? Some parents live in denial of their child’s disability. Others fight with the doctors about the medications, treatments and therapies. Yet others are simply too irresponsible to reliably administer the child’s medications or to have a critically ill child’s life in their hands for extended periods of time. Some are passive aggressive, and agree to do things they don’t want to do, and then just don’t do them.

· How supportive and cooperative has each parent been of the child’s special needs and treatment? Some parents devote their lives to doing whatever they can for their special needs child. Others turn their backs, minimize the situation, or even treat the child with cruelty, blaming the child for the stress and expenses.

· What are the daily schedules of each parent? Special needs children have three times as many sick days and school absences as typical children. Which parent will be available for care for the child on all these days?

· How involved is each parent in the child’s daily care: home therapy and modifications; medication administration; transportation to doctors, therapists and treatments; administrative aspects of the child’s special needs, such as making appointments, handling insurance issues, researching options available for the child and determining a course of treatment or action plan?

· How has each parent’s life changed since the child was diagnosed?

· How will the different possible custody alternatives affect the child’s schedule, comfort, treatments, therapies, schooling and medication administration?

· What do the child’s teachers, therapists and medical professionals suggest as to which custody arrangement will be in the child’s best interests?

· What does the child want? Your child has already faced and endured more than many people will during a long lifetime. Treat your child with respect and dignity. Determine what the child’s wishes are on custody.

· How likely is the noncustodial parent to properly follow through on the child’s medication, treatments and therapies during that parent’s period of visitation? How has this parent done on these things before and during the divorce? Has the child missed medication or missed therapy or treatments when with this parent?

· How likely is the noncustodial parent to properly handle the child’s daily care when the child is with them? Does the child come home dirty, smelly, hungry or tired from that parent? Do the child’s clothes come home dirty or not at all? Does the child’s homework get done when with that parent?

· How likely is the noncustodial parent to follow the consistent schedule and routine of the child at that parent’s home? Special needs children usually need more consistency and predictability than typical children. If one parent refuses to maintain the routine the child is used to, it will be disruptive for the child. Meal times, bath time, bedtime, waking up time and other routine matters need to be consistent for the child at both households.

· Think about where visitation will occur.

Will that setting be appropriate for the child’s condition?

Will the child be comfortable and safe there?

Will it be an appropriate environment for the child?

If the child has asthma, a household with smokers will be harmful. If the child has life-threatening allergies, for example, to peanuts, visitation where people routinely ignore this and serve the child peanut butter could be fatal.

Will the child have a bed to sleep on?

Who else will live or stay over at that household? If your child is nonverbal, he is a natural target for abusers and child molesters because he cannot report what happens.

Will your child’s wheelchair fit into and throughout the house? Has a ramp been built so your child can get inside without the indignity of being carried?

· How will the different possible visitation alternatives affect the child’s schedule, treatments, schooling, comfort, therapies and medication administration?

· Who will be helping with child care at that household?

· What do the child’s teachers, therapists and medical professionals suggest as the visitation that would be in the child’s best interests?

· Again, what does the child want? Your child has already faced and endured more than many people will during a long lifetime. Treat your child with respect and dignity. Determine what the child’s wishes are on visitation.

· Where is the equipment located that the child needs, for mobility, for therapy, for breathing treatments?

· Has the noncustodial parent completed appropriate training to be qualified to take care of your child’s medical needs?

· Does the noncustodial parent have a back-up plan in case there is an emergency?

· How will the child get to emergency medical care from the noncustodial parent’s house?

The standard the courts are supposed to use when deciding child custody issues is the best interests of the child. Use these detailed lists to determine what custody and visitation arrangement will be in the best interests of your special needs child, and then work with your lawyer to build and prove your case. Knowing what to do can improve your likelihood of achieving a good result for you and your special needs child.

Copyright Pegi Price 2009, 2011. All rights reserved.

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