Child-custody disputes — whether because of a divorce, modification of a prior judgment, or for never-married parents who are no longer together — is a difficult, confusing, and stressful process. Children of fighting parents also feel the conflict. Having a child with special needs, however, adds an additional layer of uncertainty, even when parents are trying to reach resolution and compromise amicably.
It’s natural for parents who love their children to want to spend as much time as possible with them. With the growing awareness of the effect that parental conflicts have on children, however, parents involved in this type of case must be sensitive to the needs and the necessary accommodations that the child requires.
It takes a very mature thought process to understand that what a parent wants may truly be different than what is best for their child. For example, a child who suffers from separation anxiety, is autistic, or has behavioral or sensory issues may be best suited to sleeping in the same house every night. They may need to be at the bus stop at a certain time each day, follow the same exact routine, or see the same pet.
There may simply be less anxiety being with a particular parent every night. It doesn’t mean that child doesn’t love the other parent just as much, but each parent fills a particular role in the child’s life, whether that’s helping with daily routines and homework or creating a feeling of safety and comfort.
Simply put, not every child can adjust to a schedule of every other weekend and a few days per week, nor should they be forced to. In this scenario, a non-custodial, or secondary, parent must be able to put their desire to have extended periods of time with their child behind what their child needs to be comfortable and succeed on a daily basis. Likewise, the custodial, or primary, parent needs to be sensitive to the secondary parent’s painful reality.
It is a parent’s responsibility and obligation to ensure that their children transition as smoothly as possible during these times of change. It is also each parent’s responsibility and obligation not to place their children in the middle of the conflict. That includes not communicating or exchanging things through the children. When one parent is less willing to put their needs aside for a child’s benefit, or when two parents simply can’t even agree on what the needs of their child are, the more reasonable and accommodating parent has to become creative. Sometimes the child’s counselor, therapist, physician, teacher, or special-needs school team can provide assistance, useful tools, and a neutral opinion on what will be best for that particular child given their specific needs.
A parent can also request that the court appoint a guardian ad litem to help. That is a trained and neutral third party who is asked to investigate, report, and draw conclusions about what they deem best for the child, given the totality of the circumstances. In extreme cases, a primary parent will need to consider seeking sole legal custody so that there are not constant present and future problems when making medical and educational decisions for the child. Remember, oftentimes these decisions need to be make quickly, so while parents are fighting over who is right or wrong, the child who needs to move forward remains stuck in limbo.
Recognizing that custodial and parent-time arrangements for children with special needs are not often traditional, there are many factors to be considered. They include:
• Does the school district where the child attends have a residency requirement, and if so, what schedule will potentially jeopardize educational plans, services, and accommodations?
• Does the child have the ability to make smooth or frequent transitions between houses?
• Will the child have unequivocal access to the other parent via telephone, text messaging, e-mail, FaceTime, or Skype?
• What is the child’s ability to be away from the primary parent for extended periods of time?
• What does the word ‘extended’ mean in terms of what the child will deem stressful?
• Is there more than one child in the household, and if so, should parent time be different for each child?
• How long will it take for the child to adjust to moving back and forth between households, and how is the child, in general, dealing with the separation of his or her parents?
As a possible compromise to a traditional parenting plan, there are many creative options. For example, overnights may occur only on the weekends and not during the school or work week. For a child who struggles with overnights completely, consider having more frequent dinner or after-school visits instead. Alternatively, structure a schedule that increases over a period of time to allow the child to get used to the change, or to account for their age if a child is particularly young. These solutions can satisfy the secondary parent’s desire to be with their child while recognizing what makes the child most comfortable.
The fact is that having a child with special needs, even in an intact household, requires patience, communication, compromise, effort, and sacrifice. These requirements only become more important when parents no longer live together. Some of the greatest gifts a parent can give a child are respect and acceptance of their needs, feelings, and limitations. Sometimes that means letting go of the inter-parent struggle and sacrificing quantity for quality.
Melissa R. Gillis, Esq. is an attorney with the law firm Bacon Wilson, P.C. in the domestic, special-education, and real-estate departments; (413) 781-0560; baconwilson.com/attorneys/