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Are There Unique Considerations for Child Custody of Special Needs Children?

by Law Offices of David M. Lederman
Apr 4, 2023

More and more couples in California (and elsewhere) are becoming parents to a child with a special need when parents of a child with special needs divorce or separate, the best needs of the child are the priority. Though this priority is true in any child custody case in California and throughout the country, unique factors must be considered when custody involves a special needs child.

So, there are unique considerations for child custody of special needs children in California. These considerations will also help inform a parenting plan that meets the child’s requirements.

Understanding the Unique Family Situation involving Special Needs Children

In 2019, a comprehensive study was published in the peer-reviewed publication Pediatrics, “Prevalence and Trends of Developmental Disabilities among Children in the United States: 2009-2017.” This study found that one in six (17%) children between the ages of three and seventeen years are diagnosed with a developmental disability. The study also found that the numbers are growing. From 2009 to 2011, there was a 16.2% increase, and that changed to 17.8% in 2015 to 2017. 

Special needs include developmental disabilities, like:

  • Attention-deficit/hyperactivity disorder
  • Autism spectrum disorder
  • Blindness
  • Cerebral palsy
  • Moderate-to-profound hearing loss
  • Learning disability
  • Intellectual disability
  • Seizure in the past 12 months
  • Stuttering or stammering in the past 12 months

Children with a developmental disability require special attention and additional resources, whether that’s time, money, or other considerations. Often what happens is one parent takes on much of the work, which leads to stress and a breakdown of the relationship between the parents. Ultimately, a divorce or breakup ensues and custody becomes an issue.

The well-being of the child is the primary consideration in any custody determination. When it comes to special needs children, there are unique factors that must be taken into account in order to ensure the child’s best interests are served. 

Factors Considered in Custody Determinations

When it comes to determining custody of special needs children, the court will consider what is in the best interest of the child, like it does for any child, but here, they will pay special attention to how these factors interrelate with the child’s developmental disability. 

  • The child’s age, health, and special needs. The court will consider the child’s age, health, and any special needs they may have, such as physical or mental disabilities, medical conditions, or behavioral issues. This information will help the court determine what type of custody arrangement will be in the child’s best interests.
  • Each parent’s ability to meet the child’s needs. The court will also consider each parent’s ability to provide for the child’s needs, including their ability to care for any special needs the child may have. This includes factors such as the parent’s work schedule, their ability to provide transportation to medical appointments and therapy sessions, and their ability to communicate effectively with the child’s medical providers and educators.
  • The child’s relationship with each parent. The court will consider the child’s relationship with each parent, including the quality of the relationship and the extent to which each parent has been involved in the child’s life. The court may also consider the child’s preference if they are of sufficient age and maturity to express a preference.
  • Each parent’s ability to cooperate and co-parent. The court will consider each parent’s ability to cooperate and co-parent effectively to ensure the child’s best interests are served. This includes factors such as their willingness to communicate with each other, their ability to resolve conflicts, and their ability to put the child’s needs first.
  • Each parent’s history of domestic violence, substance abuse, or neglect. The court will also consider each parent’s history of domestic violence, substance abuse, or neglect. If there is evidence of such behavior, the court may determine that it is not in the child’s best interests to award custody to that parent.

These factors are only an overview. Depending on your specific situation, the court may consider other factors, like the community, educational facilities or opportunities, and more.

Risk and Protection Assessment to Inform Parenting Plans

When devising the parenting plan that will include a special needs child, it is recommended that a risk-protection assessment be undertaken. This type of assessment can inform timeshare arrangements in light of what the special needs child requires. An assessment would consider things like:

  • Safety issues. Is one parent more vigilant in their supervision of the child? Has the home been modified to address any safety concerns?
  • Parenting skills. What are each parent’s basic routines? How does the parent discipline the child? How much time does each parent have at home? Does the parent accept or deny the child’s developmental disability?
  • Medical Needs. Does the parent cooperate and follow through on medical plans or appointments?
  • Educational needs. Is the parent uninterested in the child’s specific education needs, or is th