Custody Determinations with Special Needs Children in New York

Custody cases in general are among the more difficult domestic relations cases. Custody cases that involve children with special needs are even more challenging for parents and attorneys. Courts have recognized the “unique challenges” presented by children with special needs and the case law reflects that in custody cases involving special needs children those special needs will be a very significant factor in a court’s custody analysis.

In general, courts must consider a wide variety of factors in making a determination of custody of children. Relevant factors in determining children’s best interests include, among other things, each parent’s past performance, relative fitness and ability to provide for and guide the children’s intellectual and emotional development, as well as provide for the needs of the children.

This constellation of factors related to the needs of children is especially significant in cases where children have special needs. In considering a parent’s ability to meet the needs of their children, a court also must consider if a parent is aware of and attentive to their children’s medical and educational needs. More specifically, if a parent unreasonably denies that their child has special needs and refuses to obtain the necessary services for a child this may be a major factor in a custody determination. A court should evaluate a parent’s interest and effort regarding the children’s schooling, counseling and therapy.

If a parent is unable to understand or cope with the child’s special needs, they may not be the more suitable parent to have custody. For example, in a recent case a court also awarded a mother custody because she was better able to engage her child positively, without displaying frustration, despite the child’s limited verbal communication skills and special needs.

Providing for the needs of children includes dealing with a child’s behavioral problems. This includes behavioral issues with special needs children. For example, in one recent case a father sought to modify a custody order, alleging, among other things, that the child was having behavioral problems in school and that the mother was not adequately dealing with the problems. The Appellate Division upheld this as a basis for granting custody to the father.

Parents with children of any age and with or without special needs can do best by their children if they can put their differences aside when it comes to the children. However, this cannot always be done. In which case, parents of special needs children, who are disputing custody of their children, should look for an experienced domestic relations attorney who is familiar with the unique issues presented by custody cases with special needs children.

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