Custody Decisions for Children with Special Needs

May 10, 2023
By Alternative Divorce Solutions

Divorce is never easy on children. Small kids may be confused as to what is happening, and teens can become angry and resentful about the changes in their family. These problems are exacerbated if the child has special needs.

Special needs children require far more care and attention. There are many pragmatic aspects to consider when sharing custody. Caring for them in each environment or simply transporting them from home to home requires careful planning.

Our firm always encourages divorcing couples to work details out among themselves. Going to court can be a traumatic experience, creating enemies. This is never helpful when you must co-parent. If you are going through a divorce, and you have a child with special needs, this article can help provide some direction on how to make your custody decisions.

Observe How Courts Make These Decisions

Family courts make decisions with the best of intentions. Many aspects of family law are rooted in reasonable philosophies. It may be helpful to use the same ideologies a courtroom does when making your custody decisions.

Best Interests of the Child

When making custody and visitation decisions, courts always put the child first. Essentially, they don’t take the parent’s needs or feelings into account. If the court believes that the child will flourish under its plan, that’s the plan it will use.

Emotional Considerations

Courts consider the mental health and emotional health of the child, and they make plans around that. For example, they look at the attachment a child has to each parent. They also consider the parents’ “fitness” in terms of how happy a child will be with each adult.

Emotional fitness is difficult to determine with any kid, but it becomes even more challenging with a special needs child. Depending on the child’s disability, divorce can be particularly hard on them. For example, imagine an autistic child. Emotional states are at the very core of their disorder. They can have a difficult time processing or even recognizing emotions. Often, they thrive in structure, knowing exactly what happens at a certain time and who is involved. The very absence of a parent post-divorce can overwhelm them, calling for a complete restructuring of their routine.

When making your custody decisions, think first and foremost of the child and how they will emotionally handle the transition.

Proximity to Care

Courts are concerned with the physical location of each parent, especially for special needs kids. You must recognize each parent’s proximity to relevant, necessary medical care.

Physical Environment

Family courts scrutinize the home of each parent, making sure it is fit for children. Imagine, then, how much more valuable your space is when caring for your special needs baby. Is it accessible to their needs? Are there enough ramps or disabled-friendly items for cupboards, refrigerators, bedroom doors, and the like?

What about maintenance items? Do you have what you need for sanitation? Are there enough supplies for medical devices, including back-ups and power supplies?

These are questions you must answer to assess the fitness of each parents’ home. Until each home is ready, you must adjust custody accordingly.

Which Parent “Does It Better?”

Each of us has skills and weaknesses. When it comes to special needs custody, courts must know which parent is more “skilled” at meeting the child’s needs.

This part of your decision-making will be difficult. It requires a great deal of honest introspection. You must genuinely ask yourself who is better equipped to care for the child and create your parenting plan accordingly. Your answers are not a judgement against either parents’ character or parental fitness. Part of being a great parent is recognizing your weaknesses and making sacrifices around these realities.


Remember that sharing custody means transporting the kids from home to home. At the best of times, this can be logistically difficult. With a special needs kid, it can be a real undertaking. Kids with physical disabilities must be transported comfortably, so take their wheelchairs, crutches, and other devices into account. Children with emotional issues may have difficulty traveling at all, having outbursts of rage or sadness. Consider your child’s comfort first, both physical and mental, when deciding how to regularly move them from home to home. You may find that one parent must travel to them for visitation before you can create a workable plan for transport.

How Well Can You Work Together?

Courts are not likely to grant a closer percentage of custody to parents who cannot get along. As with all considerations, this is doubly true when the child has special needs. Family law wants the child to have as much peace and harmony as possible, and so do you. If it’s nearly impossible to work with your spouse, you must allow for the possibility that the child should spend more time with just one parent.

Be Prepared to Make Sacrifices

Remember, your custody decisions, first and foremost, are in the best interests of your child. Taking all the above factors into consideration, you may need to accept some unpleasant realities. Your life, post-divorce, may not be suited for a large percentage of custody. Of course, you love your children, and you want all the time you can have with them. But this isn’t about you. They need an environment where they can thrive, and you may not be able to provide that right now.

The good news is, your parenting plan is not permanent. It can be altered. Give yourself time to make the home welcoming to your child’s needs. Give your child time to adjust to the new dynamic, especially if their needs involve emotional disorders. Tomorrow is a new day, and you can restructure your life around your child, allowing you to see them more often and share a greater degree of custody.

With love and patience, you can work out a parenting plan that benefits everyone. If you need extra help, consider hiring a mediator. They can work with you and your spouse collaboratively, helping you create or change your plan as needed.

If you need help creating or modifying your parenting plan for your special needs child, reach out to our firm today. Our goal is to help divorcing couples collaborate, creating harmony instead of war. You can call our office at 949-368-2121, or you can contact us online.


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