Custody for Special Needs Children in San Diego
Have Questions About Your Child’s Future? Speak with a Lawyer
When parents go through a divorce, it can be difficult for their children. When one or more of the children suffers from a disability or has special needs, the situation becomes more complicated. While California has laws that protect adult children with disabilities and require parents to provide support, divorce proceedings can be especially challenging when the parents do not agree on how to handle the situation.
If you have a child with special needs, you will need to carefully consider how he or she will be cared for after the divorce. Consult an experienced San Diego family law attorney who can advise you on how best to proceed so that your child will be protected.
What Qualifies as a "Special Need"?
Some children have developmental delays, cognitive or psychiatric conditions, behavioral or emotional difficulties, learning disorders, or physical/medical conditions that require additional support. Federal law defines 13 categories of special needs:
- Learning disability
- Speech/language impairment
- Health impairment
- Mental retardation
- Emotional disturbance
- Orthopedic impairment
- Hard of hearing
- Multiple disability
- Visual impairment
- Traumatic brain injury
- Deaf and blind
Children with these needs qualify for specialized services at California school districts upon individual assessment.
Determining Custody for a Disabled Child Is More Complex
Courts always try to award custody based on the best interests of the child. Because caring for a special needs child often takes more commitment, resources, adaptability, and perseverance, the courts take extra factors into consideration before giving a parent sole or joint custody.
Some questions the court will ask include:
- Who is better equipped to handle the child’s medical needs?
- Who is better equipped to handle the child’s mental health needs?
- Who is better equipped to handle the child’s emotional or behavioral needs?
- Who is better equipped to handle the child’s learning or developmental needs?
- What is the relationship between both parents and the child?
- How much time has each parent spent caring for the child?
- How old is the child, and can he/she make an informed choice on which parent should be the primary caregiver?
In addition, the courts will look at any history of abuse or neglect by the parents, as well as all the factors they look at for any other child.
Both Parents Must Support a Special Needs Child
California law states that every parent has a financial duty to support his or her child. This duty does not end because of a divorce or because custody has been granted to one parent. No matter what custody and visitation agreement is ordered by the court, both parents have a responsibility to provide financial support until the child turns 18.
The costs of caring for a child with special needs can be steep, and can include special teachers or trainers, medication, doctor’s visits, surgeries, health insurance, daycare, and more. Moreover, even simple things, such as transporting the child from one home to another, can be difficult when a child is disabled. Among the issues that must be worked out by divorcing parents are the following:
- Visitation guidelines
- Transportation between homes
- Educational needs and school choice
- Healthcare and medical supervision
- Social and recreational activities
What Happens When a Disabled Child Turns 18 in California?
While a parent’s financial responsibility for a child normally ends when the child turns 18 and/or finishes high school, that is not the case for special needs children. This is known as the "age of majority," and the rules differ from state to state on when adulthood is reached and what it means exactly.
In California, it is required that parents still provide adequate care for their adult disabled children. According to Cal. Fam. Code §3910, "The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means." Unfortunately, the law is not clear about what it means to be "incapacitated from earning a living." There are many considerations that must be made when devising a child custody agreement that is fair to both parents and is sufficient for the child, including items such as social security and other government aid.
Divorce proceedings involving disabled children have lifelong consequences. The experienced legal team at Huguenor Mattis, A.P.C., always strives for a positive outcome to child custody cases that will minimize the stress on you and your family. If you have questions about custody, please contact us today at (858) 458-9500 for a free and comprehensive consultation.