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Children with Special Needs in Custody Matters


Family in need of attorney

The Gainesville Family Law Attorneys of the Law Office of Alba & Yochim P.A. represent clients in a wide range of child custody proceedings, including those involving children that have special needs. Establishing what is best for a child that has a special medical issue, condition, illness, ailment, disease, disorder, impairment, or disability, can be particularly challenging. In the following, our Gainesville lawyers discuss some important considerations that parents should know for purposes of establishing or modifying custodial rights and parental responsibility over a minor child that has special needs.

First and foremost, in determining physical and legal custody of a special needs child, it is imperative the court be fully apprised of all relevant details pertaining to that child’s unique circumstances. Parents must keep in mind that judges are legal professionals, not medical professionals. Consequently, whenever custody is in dispute, the most beneficial approach that a parent of a special needs child can take to protect their child, is to ensure that the court is properly educated.

In dealing with physical or emotional disabilities in children one will need even more information to adequately effectuate a child custody agreement designed to meet the special needs of a child. In gathering specific information, input should be obtained from:

    • Parents
    • Special Educators
    • Physicians
    • Physical Therapists
    • Counselors
    • Other Professionals involved in child’s care

The type of information that can be provided by these individuals, which can aide in the custodial decision making process, includes:

    • The date of onset of the disability and the prognosis.
    • How experts believe the disability impacts the child’s development.
    • The level of each parent’s involvement in working with the child and his or her disability; i.e., father attends physical therapy with a child twice per week.
    • The resources available for the child to address the losses, anger, fears, and other emotions related to having a disability; i.e., the child attends weekly group therapy with peers diagnosed with the same disability.
    • How the parents communicate about the child’s needs, including issues of transportation, special assistance, or direct work with the child.

Parents should also consider the feasibility, as well as the benefits, both to the child and the parent’s own interests, of reaching partial or full agreement on custodial issues. While agreed upon terms are still subject to judicial scrutiny, parents should note the difference between the necessities of educating the court in cases where custody is in dispute, and in cases where the parents are able to reach agreement. Where parents are able to agree upon terms, and reduce them to writing, in a detailed and all-encompassing manner that fully accounts for the child’s needs, as well as parental obligations, duties, and responsibilities, the burden, in terms of providing evidentiary proof, is greatly reduced.

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In some cases, mediation can provide an effective means of reaching resolution. However, parents are cautioned, that participation in mediation or otherwise entering into a contractually binding agreement, without the assistance of an attorney, can profoundly impact custodial and/or parental rights. In example, where an initial custody determination has been entered by the court, a parent who later wishes to modify such terms must prove that there is a substantial, unanticipated, and material change in circumstances. Consequently, where a child already has a previously diagnosed condition, it is crucial to ensure that an initial order effectuates the parent’s desires, in accordance with the Best Interest Criterion.

On the other hand, there are often situations where a medical issue regarding a child arises at some point following entry of the most recent custodial-related order. While these circumstances can serve as grounds for modification, parents must also consider the parenting terms previously agreed upon, or decided by the court. For example, where one parent has been previously granted full authority to make decisions regarding a child’s medical needs, and the other parent’s wishes to intervene, the issue may then become more complex. Consider the following hypothetical:

Parents A and B share in parental responsibilities of a child, with certain limitations, as outlined in their parenting plan. Following entry of the custodial order, Parent A brings child to doctor, and child is diagnosed with Attention Deficit Disorder. Parent A intends to treat the child with stimulant medication. Parent B objects to the diagnosis, and further feels that the administration of a controlled substance is unnecessary.

Here, a new medical diagnosis of a child is almost certain to be considered as ‘material,’ ‘unexpected, and ‘substantial,’ change in circumstances. However, the parent seeking modification, Parent B, must also prove that a change is in the best interest of the child. In other words, Parent A has obtained a medical diagnosis for the child, and Parent B, wishing to contradict this evidence, must provide the court with credible evidence as to why his request should be granted. Some examples include:

(1) the medical professional was not qualified to make such diagnosis;

(2) another (qualified) medical professional has determined that the child does not have the condition in question; and/or

(3) the child could be treated through other means, including non-stimulant medication or behavioral therapy.

Medical expenses are an additional consideration in custody matters involving special needs children. There may be support issues over what is and is not covered under insurance for healthcare, treatment, and/or prescriptions, whether in establishing an initial order, or a future proceeding seeking modification. Florida Statutes specifically address the issue of health insurance for a child, and parents should be aware of the provisions set forth throughout various subsections of §61.13.

When a child that has or may have medical issues is the subject of a legal proceeding, special attention is required in dealing with custodial matters. Parents who seek legal advice in the early stages of dispute are better able to understand their own legal rights and interests, as well as those of their child. Further, doing so, often enables parents to address matters on their own in the future, but more importantly, provides them with a readily available resource that can provide trusted and reliable advice from a professional perspective.