Physical Custody Of Special Needs Children
If parents are unable to agree on who should have physical custody, the courts will make a determination in the best interests of the child.
Some factors that are considered in determining where a special needs child should reside include:
- Which parent has been the primary care giver since the childs disability was diagnosed?
- Has the child bonded with one particular parent? .
- How has each parent responded to the childs diagnosis? Some parents may not be responsible enough to care for a special needs child for an extended period.
- How supportive has each parent been of the childs treatment?
- What is each parents daily schedule like? Children with special needs tend to have more absences and sick days than other children.
- What do the childs teachers, therapists, and medical professionals suggest would be ideal for the child in terms of custody?
- How is each parent able to handle the stress that comes with raising a child with special needs?
- What does the child want?
Child Abuse Should Be Reported
Within the context of a family court proceeding, California law is very clear that physical abuse is a proper reason to lose custody of a child.
Both legal custody and physical custody may be lost as a result of child abuse. Parenting time may be limited to supervised visitation or no visitation at all.
A physically abusive parent may lose all contact with a child depending on the abuse’s severity and frequency.
Are There Other Reasons To Lose Custody Of A Child That We Have Not Discussed
Yes. Clearly, no article will cover every situation. Our family law firm is very experienced in handling child custody cases.
Sometimes, we have filed a request to take custody away from a parent who refuses to act consistent with the child’s best interest.
Whether your case has a proper basis to make such a request is a fact specific question.
You will likely not find answers to that question on the internet. You need experienced and knowledgeable legal representation.
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Special Physical And Therapy Needs
If a child has special physical needs and requires transfer equipment or special lifting equipment, which may be located at only one parents house, and the standard parenting plan provides for extended visitation at the other parents house, the child may be greatly inconvenienced because of the physical transfer logistics.
With children with special needs or autism and divorce, a standard time-sharing plan may prove negative results for a child who needs regular therapy appointments, as many treatments for school-age children are in the afternoon and early evening. If the time-sharing plan sets aside certain days for a parent, without consideration as to whether that parent is available to take the child to their therapy, the child might miss their scheduled treatments, and lose a valuable opportunity for advancement.
Be Involved In Your Child’s Life
In addition to making sure you can take care of a child’s basic and practical needs, the court will look for evidence of a meaningful relationship.
While you may feel a strong connection with your child, the judge is looking for objective expressions of that as well.
- Do staff members at your child’s school know you? Have you met with them about academic progress?
- Do you sit and do homework with your child or coach their sports team?
- Do you attend your childrens social, educational, religious, and other important events?
- Do you know who your child’s best friends are? What your child wants to be when they grow up?
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Children With Autism Or Special Needs
Studies have shown that parents of children with special needs are under heightened stress levels.
Further, stress can be a contributing factor in the breakdown of a marriage.Children who are on the autism spectrum, or otherwise have special needs, require certain considerations that must be taken into account when fashioning a visitation and custody arrangement that will be most beneficial for the child when parents are divorcing. Special needs families also have different financial considerations.
There are two types of custody in New Jersey: legal and physical custody. The parent with legal custody is the one who makes major decisions on behalf of the child. The parent with physical custody is the one who resides with the child.
Typically, in New Jersey, legal custody is jointly shared. This way, both parents have an equal say in all-important matters concerning their child. However, this is easier said than done. Divorced spouses may have trouble communicating and agreeing, necessitating the help of a neutral third party or lawyer.
Why Worry About Guardianship
Parents of children with disabilities sometimes assume they will always have the authority to make decisions on their child’s behalf, especially if their child does not have the intellectual ability to understand their rights. Parents may wonder if they even need to worry about guardianship if their child will never make decisions for themselves.
The answer to this question is simple: once your child reaches the age of majority in your state, they are considered a legal adult. That means, for example, that you will no longer have the right to be in the room with them during a medical examination unless your child specifically grants permission. You will also no longer have the right to insist that your child goes to, or stays in, school if he or she refuses.
There are also potential financial and legal ramifications once your child comes of legal age. For example, if your child signs a contract the contract is binding.
Guardianship and other legal arrangements or agreements can be extraordinarily helpful as your child begins to interact with the “real world” as an adult.
As a parent, having such an arrangement in place will ensure that you have:
- The ability to help your child make smart legal and financial decisions
- The ability to be present and involved with medical decisions for your child
- The authority to sign contracts, government documents, or agreements on your child’s behalf
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Neglect May Be Difficult To Prove
If a child is malnourished, he or she may look very thin, lack energy or become ill more often than what is normal. That, by itself, may not be apparent to anyone but those who see the child on a frequent and regular basis.
A non-neglectful parent, an older sibling, a grandparent who sees the child regularly, a teacher and those actively in the child’s life are the best at noticing neglect.
Doctors and other health care professionals who examine a child, especially during examinations, are also valuable in this regard.
Some parents ignore neglect. They do not take any action to stop it. That is the same as ignoring abuse. If the neglectful parent will not change his or her ways, much of the same methods to stop abuse are available to the other parent.
Visitation Considerations For Children With Autism
Regardless of where the court determines the child should reside, or where the parents mutually agree they should reside, both parents are typically entitled to share in parenting time. Although for most children a split parenting time arrangement may be ideal, this type of arrangement, with back and forth transitions, can be disruptive for a special needs childparticularly one who has been diagnosed with an ASD .
Children diagnosed with ASD tend to have difficulty with transitions, as such, a parenting time arrangement with lots of transition can impede an ASD childs progress and development. Children on the spectrum may be more likely to thrive with a structured routine and consistent parenting style.
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When Guardianship Is Rarely A Good Choice
Guardianship may not be a reasonable choice for adults on the autism spectrum who are of normal intelligence and clearly state they do not wish to have a guardian.
When an adult is able to understand their rights and express their preference to retain those rights, it would be very difficult for a judge to grant guardianship, as the individual in question is capable of understanding financial and medical issues and can make his or her own decisions. It would be unreasonable to strip someone of his or her rights as an adult in this situation.
Still, the issue is complex because autism is a significant developmental disordereven for people at the highest end of the autism spectrum. People with autism lack many of the social communication tools that neurotypicals rely on to “sense” when they are being scammed or effectively manage their emotional responses.
Even the brightest and best-educated adult on the autism spectrum can be taken advantage of or victimized by predatory individuals. For example, falling prey to someone who poses as “friend” and makes monetary offers or requests that are conditional to the friendship.
People on the autism spectrum are also more likely than most neurotypicals to become overwhelmed by sensory challenges. In high-stress situations or settings, such as hospitals, sensory overload may render individuals unable to make decisions .
How Does Parental Alienation Factor Into Losing Custody Of A Child
Like some of the other reasons to lose custody of a child, whether parental alienation is enough depends on the nature and extent of it.
Our family law attorneys have seen and handled extreme cases. We have successfully modified child custody as a result of parental alienation.
We have also seen situations where the alienation had taken place for so long and was so pervasive that by the time the alienated parent came to us, there was not much we could do. This is especially true with older, teenage children.
Parental alienation is similar to neglect because it is not always apparent. It can take place for years without being noticed by anyone other than the other parent or those very close to the child.
An alienated parent must act quickly and decisively. We strongly encourage you to read the parental alienation articles we have written to learn more.
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Custody And Child Support
Child support is an ongoing, periodic payment made by a parent toward a childs living and medical expenses. Both parents have a legal duty to provide financial support for their child. When a couple divorces, a court will look to a number of factors to determine the amount of child support that should be paid. Child support can be made toward a variety of costs, such as health insurance, recreational activities, college, car expenses, etc. In the case of an autistic child, calculation of child support can require special considerations that must be weighed by the court. Further, the court will decide which parent is the custodial parent or if there is some sort of shared custody arrangement. In cases where custody is not shared, it is the non-custodial parent who will be required to make child support payments to the custodial parent for the care of the child.
Also, when the child turns 18 years old, if he or she is still not able to care for himself or herself, either parent can file for legal guardianship. In such cases, the parents could agree to split the cost of filing and court fees. As a legal guardian, one or both parents would be responsible for the wellbeing of the adult child. It must be noted that guardianship does not happen automatically and must be petitioned for.
Becoming A Legal Guardian To Your Adult Child With Autism
When children with autism grow up and become adults, how do their rights and access to services change? In honor of Aprils Autism Awareness Month and World Autism Day, lets a take a look at what happens legally when a child with autism reached the milestone of adulthood, and how parents can prepare.
In New Jersey, once a child turns age eighteen, he or she is considered a legal adult, free to make their own decisions and permitted to make their own life choices. But, this isnt always so cut and dried for a child who has been diagnosed with Autism Spectrum Disorder, depending on where on the spectrum they are.
Perhaps that child cannot appropriately express themselves or understand day-to-day activities that come with living completely independently. Perhaps they may not be able to hold down a full-time job. In these types of situations, families of the child with Autism can seek to become the legal guardian to that child who is now over the age of eighteen.
The process can be overwhelming and murky. It is strongly advised that parents seeking to become the legal guardian to a disabled child seek the advice and services of an experienced and qualified attorney who is familiar with the law surrounding children with disabilities and guardianships here in New Jersey.
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Domestic Violence Raises A Presumptive Reason To Lose Custody Of A Child
Domestic violence and child custody sometimes collide in a family law case. And when they do, much of the focus becomes whether there has been a finding of domestic violence against the accused parent and, if so, whether that is a sufficient reason to lose custody of a child.
On this topic, we have written an article about the impact of domestic violence on a child custody case. We encourage you to read it because it provides a good summary of California law on this issue.
Attitudes Of The Child Toward The Parent
- How does the child feel toward the parent?
- Is the child comfortable with the parent?
- Is the child afraid of the parent?
It is important for both parents to encourage and foster positive relations between the child and the parent, so it is important that the child is not encouraged to hate the other parent.
If a child is expressing concern or is acting out before visits, this can be a sign there may be a break in the relationship that needs to be fixed. It is important to listen to the child and act when appropriate.
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Keep Track Of Visitations
Having an accurate record of your visitation schedule is an important part of trying to win child custody. Visitation records not only show how often you see your children under the current arrangements, but they also demonstrate your reliability and commitment to your kids.
If you and your ex-partner currently have a parenting plan that was submitted to the court when child custody was originally discussed, then be sure you are honoring the visitation arrangements in that plan. And, if your ex-partner is not honoring those arrangements, or if they are keeping you from your kids, document that too.
One way to keep track of your visitations is to use a calendar or a child custody app. Look for apps that include a time and date stamp as these are considered reliable pieces of evidence in court and lend credibility to your argument.
Other Legal Approaches To Safeguarding An Adult With Autism
In addition to guardianship, proxies, and powers of attorney, your family may want to consider the other options for ensuring your adult child’s legal and personal safety.
- You may want to think about appointing a permanent or temporary Guardian or Conservator who is responsible for handling specific decisions. This appointment can be permanent or for a short period of time.
- You can create a joint bank account in your name and your child’s name.
- Your adult child can create an Appointment of Advocate and Authorization, which allows them to designate someone to advocate on their behalf when interacting with agencies like the Department of Developmental Services , the Department of Human Services , Medicaid, and the local authorities.
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How To Convince The Court To Give You Custody Of An Autistic Child
Apart from getting the best possible legal team to represent you, you need to demonstrate to the court that above all, you are focused upon the best interests of the child and you can provide the most stable household with the most consistency to support the needs of your child.
You need to demonstrate that you are not in denial about your childs medical condition nor are you being oppositional to treatments being offered by medical professionals. You also need to show that you are doing your best to cooperate with the other parent.
Children on the spectrum have a lifelong disability and autistic children can experience an uneven pattern of thinking abilities and difficulty in focus and may experience discomfort in busy, complex social situations. Their social interactions may be misunderstood by those not on the spectrum.
Because divorce and separation is such an incredibly stressful time for both parents and children, but particularly so, for autistic children who may have difficulty in making sense of their new domestic arrangements, courts will be focused upon encouraging families to provide a peaceful transition from an intact family unit to two separate households.
What Does A Child Custody Evaluator Do
The evaluator appointed by the court may review court documents and health records, observe parent/child interactions, or interview parents, children, and involved professionals .
The evaluation will likely also include psychological testing of the parents to aide the evaluator in making a recommendation on what is in the best interest of the child.
When the evaluation is complete, the evaluator will prepare a report for the court in making their decision. If either parent disagrees with the report, an opportunity will be provided to present objections to the court which may include testimony or evidence to the contrary. This report is confidential if you disclose the contents you could be fined, ordered to pay the other partys attorneys fees, or both.
Also, the court may consider appointing minors counsel who will represent in the child in making sure the childs voice is also heard in a high conflict custody case.
Coming up with evidence to prove an unfit parent may not be that difficult as we live in a digital age. Parents can use photos, videos, and even comments on social media in court to help prove an unfit parent.
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