Child Custody IAQ: Custody of Children with Special Needs

Child custody cases are extremely complex, and not just because of the human realities and emotional investment involved — they’re complex just on their own, as legal entities. That’s why we’re devoting a couple of weeks this month to a short Child Custody IAQ: Infrequently Asked Questions. Today’s questions involve custody cases wherein the child in question has special needs that prevent traditional custody arrangements from working as expected.

How Does the Court Decide Custody for Children with Special Needs?
The court is not allowed to use any unique rules to cover children with special needs — it follows the same protocol as with any other child. That protocol is simple: the court must do what it believes to be in the best interest of the child. The precise nature of the child’s unique needs will naturally guide the court’s decisions, but ultimately the court is legally obligated to consider the child’s interests above all else.

What Are Common Concessions The Court Makes for Children with Special Needs?
The standard “every other week” schedule of parenting rarely works out well for children with special needs. The schedule will naturally be made to try to fit as close to a 50/50 split (for joint custody) as possible, but will frequently twist around small questions like “which parent has an easier time taking Evan to his doctor’s appointment every Thursday?” Not to make life easier for the parent, of course, but to make life easier for Evan.

How Are The Costs of a Child with Special Needs Accounted for by the Court?
Kids with disabilities or other special needs often have expenses above and beyond what the standard government benefits will pay for. For those unique expenditures, the divorcing parents are asked to come to an agreement on what expenses are worth maintaining, at which point those costs will be taken to account on whatever child support or other expense arrangement the courts come to.

How Are a Child’s Medical Requirements Accounted For by the Court?
Obviously many children with special needs have frequent and/or more urgent medical needs than most. For children with predicable medical needs, as hinted at above, those needs may affect the parenting schedule. Similarly, your assumed schedule will likely also affect the parenting schedule — for example, if you’re able to be present when your child is dropped off by the school bus every day and your spouse isn’t, you can expect that the court will notice.

How Can I Maximize the Chance of Retaining Custody of my Special Needs Child?
Simply put, maximize your ability to be your child’s caretaker. Every argument you make that puts yourself in a better position to care for your child than your spouse is another step closer to convincing the courts that the child’s best interests lie in your care.