Divorce and The Special Needs Child – Who Gets Custody?
By Fredrick Klarer, Lawyer and Divorce Mediator
In Divorce Litigation and Divorce Mediation, an issue that comes up sometimes is how to address the custody and support of Special Needs Children. This article attempts to shed light on this issue. It focuses on how custody is determined. Then it talks about whether better to litigate or mediate Child Custody in the case of Special Needs Children.
Child Custody — The Basic Factors
We start by considering Child Custody in general. Here is how it works, if parents end up in Court, arguing over Custody:
In any custody issue, the primary concern is the best interests of the child.
Neither parent has an automatic right to custody of any child. Whether you are the mother, or the father, the Court will look first to the needs of the child. A Court will consider the “totality of the circumstances”, including the relative fitness of the parties and “quality of their home environments.”
In more detail, the Court will consider:
- “The quality of the home environment and the parental guidance the custodial parent provides for the child
- The ability of each parent to provide for the child’s emotional and intellectual development
- The financial status and ability of each parent to provide for the child
- The relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent.”
A Court has wide discretion in evaluating the above factors. “The Court requires the evaluation of the testimony, character, and sincerity of each of the parents. While the child’s preference must be considered, it is not determinative, especially where the child is of young age or cannot articulate a position.”
In evaluating Custody, the Court will look at “whether each parent would foster the relationship of the child with the other parent.” Parents who withhold the child from visitation, or seek to control the child inappropriately, or who talk badly to the child about the other parent, are not going to do well in this Court evaluation. The Court will usually decide that “joint custody is inappropriate where the parties are antagonistic towards each other. Especially bad is a demonstrated an inability to cooperate on matters concerning the child.”
Court Evaluation and Joint Custody – The only way that the Court will agree to joint custody is if each of you shows a genuine concern for your child’s welfare and a genuine desire to cooperate with each other in parenting. Otherwise, the Court will award custody to one parent and visitation to the other.
Opting for Divorce Mediation – If you really care about your child’s welfare, and agree that your spouse is a competent parent, you don’t really need to endure a Custody Case and go through Court Evaluation. Rather, it is better to seek out a skilled and knowledgeable Divorce Mediator who can guide you to a resolution. All it really takes is a concern for the child’s welfare rather than a stubborn insistence on your own point of view, without considering the other possibilities.
Child Custody and Special Needs: A Case Study
Below is a Case Study that sheds light on what the Court might decide in a Child Custody Case regarding a Special Needs Child:
In a New York Supreme Court case in Richmond County (Staten Island, in New York City), B. K., Plaintiff vs. J. N., Defendant, the Court dealt with the custody of a young, autistic, child. The parents were not living together. The mother was extremely hostile to the father and refused to inform him of any actions she had taken with respect to the child’s need and did her best to exclude him. In contrast, the father, while he initially made a number of poor decisions, was found to be much more attentive to the child’s real needs.
The father recognized early on that the child had special needs and immediately took steps to seek professional diagnosis and treatment. The mother initially refused to acknowledge the child’s needs. When the father invited the mother to participate in the discussions with the professionals the mother participated only to the extent that she did not accept the diagnosis. She believed that there was nothing wrong with the child.
The professional who did the initial evaluation and treatment pointed out to the Court that the mother’s position was in direct contradiction to the child’s behavior and developmental record. When pressed on this by the therapist, the mother insisted that anything wrong with the child was based on some sort of trauma caused by the father.The therapist found this completely unsupportable.
When the mother finally accepted that, perhaps, her child needed some level of special services, she then engaged in impulsive, and to some extent, reckless behavior. She engaged duplicate services, ignoring that the child was already receiving services arranged by the father. The mother did not even tell the father this, and, in fact, did not inform the service providers of the father’s name and contact information.
The father only found out about these duplicate services in Court during the trial. There was no attempt to coordinate the services the child was receiving in two different places. “Wife’s failure to coordinate also makes no therapeutic sense. Since the service providers were unaware of each other, there has been no sharing of information regarding [the child], her status, her treatment goals or strategies being used to reach them. Regardless of what [the mother’s] feelings are towards [the father] or what she believes he is or is not entitled to in terms of parental rights, it was reckless to subject this child to such a scheme.”
Child Custody of Special Needs Child: Ability of Parent to Promote the Stablity of the Child
When evaluating cross claims for custody, the Court is charged with determining which parent presents as better suited to provide for the subject child’s moral and emotional development.
When determining the custody specifically of a Special Needs Child, the Court must consider which parent “will best promote stability”. “Stability relates, among other things, to an ability to provide financial support, and a stable household.”In the B. K., Plaintiff vs. J. N., Defendant case we are discussing, the Court was very concerned about the mother’s ability to provide the kind of stability required. The Court said about this:
When considering the factor of stability, despite listening to extended testimony on the subject of finances, this Court remains unsure as to how [the mother] supports herself and by extension, how she would support the subject if custody to be granted to her.
Despite having obtained a Bachelors Degree in Business Administration, [the mother] has not worked since she became pregnant . . . While this Court does not credit [the wife’s] claim that she stopped working because [the father] wanted her to, even if that testimony were credible, it would not explain why [the mother] has not secured employment since the parties separated. [The mother] testified that she has simply chosen to stay home, despite the fact that she currently shares parenting time with [the father]”
The Court Considered the Role of Primary Caretaker
Both parents claimed to have been the primary caretaker. However, the mother spent most of her testimony to the Court addressing her past mistakes and her complaints about the father rather addressing the positive interactions she had had with the child. The father focused considerably more on the various exercises, routines, and positive activities enjoyed between father and daughter. The Court said:
It appears that Husband has played the role of primary caretaker since he was awarded considerable parenting time with [the child]. Accordingly, an award of custody to Husband would preserve his role as primary caretaker.
The Special Needs Child and Parenting Time for the Non-Custodial Parent
B. K., Plaintiff vs. J. N., Defendant, continued – The Court recognized the importance of maintaining a close and loving relationship for the child with each parent. The forensic evaluator (the therapist), at first suggested that the mother have alternating weekends with two consecutive overnights when it was not her weekend. However, once it was realized that the mother had moved from Staten Island to the Bronx after the beginning of the dispute, the evaluater changed his suggestion. In fact, he said that the originally proposed schedule was “the exactly wrong thing to do.”
He felt that so much traveling would be a burden on the child. The Court agreed and, in the best interest of the child, awarded the mother every other weekend, with the child to be returned to the father on Sunday evening, and two evenings a week, but not overnights. That would reduce the burden on the child. The Court awarded alternate holidays to each parent, which is pretty standard.
Child Custody and the Special Needs Child: Some Conclusions
This case is an example; every marriage and every child is different. But clearly, we can draw some useful conclusions from this case.
1. First, any court will determine on its own what the best interests of the child are, based on certain standard criteria. It is easy to say, “It is in the best interests of my child to be with me,” but without an analysis based on the criteria I have laid out in this article, that is a risky bet. It is really important to be honest with yourself about what is really in the best interest of your child. Assuming that what you think is in your best interests is in the best interests of your child may lead you astray.
2. Merely having been at home with the child more than the other parent is a factor, but it is not the determining factor. The quality of your parenting of the child, your cooperation with the other parent, and your providing an environment in which your child can grow and thrive is more important.
3. Stability and the ability to support yourself is crucial. Sometimes you have a parent who expects to stay home with the kids while the other parent gets visitation and to financially support the stay-at-home parent and the children. That just does not happen. Any court what has to deal with these issues expects both parents to work and does take into account the ability of each to financially provide a stable home environment for the child.
In conclusion re Child Custody and Special Needs Children, the situation is complex and depends on many factors. If you and your spouse are locked in conflict about these factors, Divorce Litigation, meaning a Court fight, is almost inevitable. If instead, the two of you can work together in the best interests of your Special Needs Child, then Divorce Mediation is a far more affordable, faster and much less stressful solution.