There are few things more stressful and overwhelming than going through a divorce, particularly when you have complex custody issues that need to be resolved. These issues become even more complicated when you have a special needs child. Common child custody issues in divorce including child support, visitation schedules, and meeting the day-to-day needs of the children can become more complex when considering that special needs children often require additional care like medical treatments, physical therapy, and medication. A custody agreement should address these needs and ensure that your child’s best interests are protected. A child custody lawyer will walk you through every step of the divorce process and negotiate a custody agreement that meets your child’s unique physical, emotional and financial needs.
What Is Child Custody?
“Child custody” refers to the legal rights and responsibilities that the parents have to properly care for, and provide for their child after a divorce or a legal separation. Unless the circumstances warrant one parent getting sole custody of the child, courts will usually award joint custody to the parents. Assuming that the parents will no longer be living together after the divorce, they must come to an agreement about custody and establish a visitation schedule that is in the best interest of the child. This is particularly important for special needs children who may have a range of medical, emotional and mental health issues that need to be taken into consideration. For example, if the child has a physical impairment, the court will want to determine whether both parents’ homes are equipped with the necessary ramps or other equipment that makes the home as safe and accessible as possible. If the child suffers from a mental or emotional health issue, the court may require that the child has as few disruptions to their routine as possible, and that the child remain as close to their current healthcare providers as possible.
What Are the Different Types of Custody?
From a legal perspective, there are two types of custody that must be determined by the court when a couple makes the decision to get a divorce, including legal custody and physical custody.
This refers to the decision-making authority that each parent has when it comes to important, long-range decisions that will have a significant impact on the child’s life. One parent may have sole legal custody, or both parents may have shared legal custody. If both parents have shared legal custody, they both have the authority to make decisions that impact their special needs child. The decision to grant sole custody or joint custody will be based on what is in the best interest of the special needs child.
In some cases, one parent may have a difficult time coming to terms with the fact that the child has a disability or other health concerns that qualify them as “special needs.” This is particularly common when a child has been diagnosed with autism spectrum disorder (ASD), ADHD or a learning disability. If the parents cannot come to an agreement about their child’s special needs, and take the necessary steps to get their child care that they need, the child may not have sufficient access to the needed services and accommodations. When treatment is delayed because the parents cannot agree on a treatment plan, it is the child that suffers.
In other cases, a judge may order joint legal custody, but designate one parent as the tie-breaker if they are in a situation where they cannot reach an agreement. In some ways, this is similar to one parent having sole custody, but it encourages both parents to stay involved in the child’s life, and make an effort to communicate and resolve problems with each other.
This refers to the child’s living arrangements. Like legal custody, parents can have shared custody or one parent may be granted sole custody of the child. Joint custody is much preferred over sole custody, since it guarantees that the child will continue to have regular contact with both parents. Whether the parents agree to a 50-50 split, or something close to that, joint custody only works if both parents live in the vicinity of one another, and can maintain a regular, consistent schedule with the child.
If the child spends the majority of his or her time with one parent, that parent may be granted sole custody, and grant the other parents visitation rights. The parent with sole custody is the custodial parent, and the other is the noncustodial parent with visitation rights. Children who are on the autism spectrum, deal with ADHD, or have anxiety often have a difficult time handling transitions. When determining custody, a judge will likely take this into consideration and recommend a custody arrangement that meets the unique needs of the special needs child.
What Factors Should Be Considered in a Custody Agreement Involving a Special Needs Child?
In every child custody case, the court will make a decision based on the child’s best interest standard, which addresses a range of factors when determining the best placement for a child. When a case involves a child with special needs, there are additional factors that must be considered when making a custody decision, including the following:
- Both parents’ ability to care for and meet the needs of a special needs child, including medical care, physical and occupational therapy, speech therapy and cognitive therapy.
- Whether both parent’s homes are equipped with the necessary equipment, including wheelchair ramps, and bathrooms that are handicapped accessible.
- How close both parents live to the child’s doctors, therapists, and other healthcare professionals
- How effectively the parents communicate with each other, and the effect this has on the child
- How likely it is that the child will be able to smoothly transition between the two homes
- Will the child be able to easily contact the other parent at any time, either via text, FaceTime, or email?
- How does the child tolerate being away from the primary parent?
- Is there more than one child in the home, and is the parenting time different for each child?
- Does the child have trouble adjusting when transitioning from one home to another?
What Key Elements Should a Parenting Plan Address?
A divorce can be a traumatic experience for any child. However, a special needs child who has a physical, emotional or cognitive disability can have a particularly hard time dealing with the impact that the divorce has on their everyday life. Parents should consider the following factors when developing a parenting plan:
- Consistency, stability and structure. Children with an emotional, behavioral, or mental disability have a difficult time dealing with change. It can cause them to act out, have difficulty adjusting, and experience a high level of anxiety. In many cases, special needs children may benefit from remaining with one parent who has sole physical custody, and the other parent has scheduled visitation.
- Importance of supervision and mental health counseling. In addition to the physical, emotional, and cognitive challenges that special needs children face, the change of a divorce can cause extreme stress, which can affect their ability to adapt to the divorce. Depending on the age of the child and the nature of his or her disability, the child may become depressed, anxious and even suicidal. It is very important that the child’s mental health is monitored and that ongoing treatment is provided.
- Flexibility and planning ahead. The best parenting plan for a special needs child must consider the child’s future beyond the age of 18. This will require the parents to evaluate a range of legal and financial issues, and consider the type of care that the child may need as he or she continues to grow. For example, depending on the nature of the disability, the parents may want to consider whether one or both parents should become the child’s legal guardian, who has the legal responsibility to make decisions regarding healthcare, welfare, finances, living situation and other important areas. In some cases, the child may require care and treatment through adulthood, and may be unable to live independently. Parents must plan for potential uncertainties and provide avenues for modification if the parenting plan needs to change.
Bridgewater Child Custody Lawyers at Lyons & Associates, P.C. Handle Custody Issues Involving Special Needs Children
If you are going through a divorce, and you have a special needs child, there are complex custody issues that will need to be resolved. The Bridgewater child custody lawyers at Lyons & Associates, P.C. will assist you with every step of the divorce process and negotiate a custody agreement that meets your child’s unique needs. Our dedicated legal team will thoroughly address all of your questions and concerns. To schedule a free, confidential consultation, call us today at 908-575-9777 or contact us online. With offices located in Somerville, New Jersey and Morristown, New Jersey, we serve clients in Bedminster, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, Morris Plains, Bridgewater, Woodbridge, Basking Ridge, Mendham, Morristown, South Plainfield, Somerset, across Somerset County, Morris County, Union County and throughout New Jersey.