Good question. And increasingly, a commonly searched question. Why is that?
There has been a dramatic rise in the population of children with neurodevelopmental, psychiatric, and medical syndromes whose parents are disputing custody in the family courts. There is also a rapidly expanding number of divorce and separation cases involving special needs children. Correlated with this is the possibility of complicating and exacerbating an already delicate situation.
It’s a lot to untangle and often with a great deal of urgency attached. Amy Laughlin is Founder and Managing Partner of Laughlin Legal, and highly experienced in child custody for special needs children. “In California, courts are generally going to want to do a 50/50 split, where each parent has equal time with their child, and there’s good reason to. Many studies have shown conclusively that children who don’t have a significant, healthy relationship with both parents don’t do as well in life. But these cases of legal custody for children with disabilities are very complex and challenging even for the best of parents. So often in these cases, special needs child custody court decisions include ordering a child custody evaluation, and the custody evaluator will really drill down and make recommendations specific to this individual child and individual family. They pursue a level of detailed inquiry that’s otherwise unavailable in its breadth and depth.
A child custody evaluator is a psychologist or mental health professional trained to research and observe the child’s health and health records, the child’s school and daycare records, as well as the various settings and relationships that frame a child’s life. After a couple months of gathering and fact-finding, the evaluator presents a confidential report to the court including recommendations for a parenting plan.
In the absence of a recommended parenting plan, parents often try but fail to agree on a plan of their own devising. In that event, it falls to a family court judge to decide. According to selfhelp.courts.ca.gov, here’s a shortlist of basic criteria in bold which a judge in California will consider in determining what’s in the best interest of children in general, immediately followed by Ms. Laughlin’s perspective (in quotation marks) on how that consideration changes when the child has special needs:
- The age and health of the child. “This first consideration is more complicated for special needs children than it might appear. Chronological age is often less descriptive or relevant than developmental age; in other words, what a child is capable of physically, emotionally, cognitively, socially. Health, too, is often open to interpretation. It’s not uncommon for parents to disagree on something as fundamental as their child’s diagnosis.”
- The emotional ties between the parents and the child. “This goes back to the default 50/50 split. In a special needs case where transitions are often challenging, that gets factored into the schedule. It might be very hard for an autistic child to be on a typical schedule, transitioning from one home to another 3 or more times each week.”
- The child’s ties to their school, home, and community. “Again, the frequency with which a child visits school, daycare, even parents’ homes is often complicated by a difficulty managing transitions. Understanding the intervals that that child can manage is critical to developing a schedule that leads with what will promote the child’s comfort and well-being.
- The ability of each parent to care for the child. “Parenting special needs children requires an incredible amount of hands-on time with the children. So if a parent has a really demanding job, unless they have the resources to hire help, it might be impossible for that parent to have equal custodial time. Sadly, custody rights for parents of disabled children and parents of special needs children truly must default to whatever is best for the child even when it’s heartbreaking for the parent.”
Have questions? Laughlin Legal’s child custody mediators and child custody attorneys are highly skilled at family law and special needs child custody. They’re trusted throughout California for their ability to help parents navigate the healthiest outcomes for their special needs child. Call now at 650.343.3486 to schedule a consultation with a Laughlin Legal child custody lawyer. If you’d prefer, you can email us to set up your appointment. If we miss your call, we will respond promptly and call you back as soon as possible.
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