Child Custody Considerations For The Special Needs Child

In Nevada, in the last several years, the percentage of children diagnosed with a disability was approximately 4-5%. Despite this, Nevada’s child custody statutes offer little guidance when it comes to creating parenting plans for children with special needs. Indeed, almost everyone who practices child custody law is familiar with the “best interests of the child” standard as stated in NRS 125C. However, the statutes, and child custody case law, offer little guidance when it comes to figuring out the custody and a parenting plan for a special needs child.

As a practitioner in family law, the one-size-fits-all approach to creating a parenting plan does not necessarily work. Fortunately, NRS 125C allows the Family Court to consider other factors aside from the best interest factors specifically identified by the statute. The Risk Assessment Model developed by Dr. Pickar and Dr. Kaufman offers a framework for family law attorneys to consider when arguing for child custody and a parenting plan in cases involving special needs children. Pickar, D.B., & Kaufman, R.L., Parenting plans for special needs children: Applying a risk-assessment model. Family Court Review, 53 (1), 113-133, (2015).

In a case where the custody of a special needs child is at issue, attorneys arguing the case should consider the following:

• Physical safety and supervision: Is one parent more likely to be vigilant in supervising the child and able to protect the child from danger? Is one parent more lax in their supervision of the child which makes the child prone to injury, wandering or being preyed upon?
• Parenting skills: How is each parent able to tolerate and manage the child’s behavior?
• Structure and routine: Can both parents implement consistent structure and routine for their special needs child and follow through with in-home behavioral plans?
• Discipline: Do the parents appropriately discipline their special needs child?
• Time and availability: While in the case of a neuro-typical child, the court cannot award custody due to a parent working, this may not be true in the case of a special needs child. Certainly, the practitioner working on a child custody case involving a special needs child must consider whether the parent is available to attend appoints and supervise the child.
• Acceptance about or denial about child’s condition: It is critical that when awarding custody the court be aware about both parties’ understanding of the child’s condition, the medical treatment and therapies needed, and whether the parent is accepting of the condition. Likewise, many special needs children require in-home therapy and treatment. As such, the court needs to consider each parent’s willingness to allow medical intervention and therapies.
• Transitions between homes: This is a big consideration for children with autism and children with needs who do not tolerate change. How a child will move back and forth between homes is a critical consideration for a special needs child when creating a parenting plan.

Obviously, every child is different and the above considerations are only a few. However, creating a parenting plan and determining custody for a special needs child requires special attention and special consideration.

About the author

Molly S. Rosenblum, Esq. is the owner of the Rosenblum Allen Law Firm. Molly has been in practice approximately 20 years representing the rights of parents in various court throughout Clark County, Nevada. Ms. Rosenblum has tried several child custody and dependency cases to verdict involving special needs children.