More than 168,400 special needs children were enrolled in Virginia’s public schools in 2016, according to the Virginia Department of Education. For 2013 (the most recently available year) Virginia recorded over 29,400 divorces. Those two typical statistics intersect far more often than most people realize. If you are contemplating a divorce and you are the father of a special needs child, what can you do to make that transition as smooth as possible?
Divorce & Parenting a Special Needs Child
According to the New Jersey Law Journal, rates of divorce among parents of special needs children are staggeringly high: as much as 90 percent. Too often even with so-called “mainstream” kids, children blame themselves for divorce or separation.
Special needs kids already start several steps behind their peers; compounding their issues with a custody battle, separation or divorce only adds to their often low self-esteem.
The sad reality is, a special needs child could very well be the tipping point in a Virginia divorce. The last thing the two parents should do is make the child feel unloved or unwelcome. A plan for custody is essential.
Custody Options in Virginia
Parents of special needs children have the same options regarding child custody as other parents. You and the child’s mother can decide between three main custody profiles:
- You have shared custody, splitting the parenting time equitably (though one parent may have legal custody and make legal decisions for the child)
- One of you retains sole physical custody, with the other parent enjoying visitation
- You both enjoy joint custody, sharing legal decisions, parental responsibilities and family joys as equally as possible
Within each custody model, variations can be worked out; a shared custody arrangement may be 50-50, 60-40, or 70-30 time splits between Mom and Dad. A sole physical custody model could include a whole, uninterrupted month of time with one parent during the summer.
What is in the Best Interests of the Child?
Time and again we repeat the Virginia legal mantra, “in the best interests of the child,” since that is the Commonwealth’s overarching concern in protecting our littlest citizens.
Triple that concern if the child is special needs. Your divorce or separation is an action pursued by you and the child’s mother, but the child is an unwilling participant. The state, in law after law, places the child’s interests above yours.
While any of the permutations of child custody may work for most children, special needs children have unique considerations. Perhaps a psychologist, psychiatrist, or pediatrician thinks that sole custody is optimal for your special needs youngster. A professional opinion such as that is likely to bear more weight in court than either parent’s emotional appeal.
In weighing custody, Virginia’s courts are required to consider many factors, but with regard to the special needs population, these five factors stand out:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; and
- Such other factors as the court deems necessary and proper to the determination.
Sole Physical Custody
Parenting a special needs child is a Herculean task, so the parent who demonstrates a realistic parenting plan, complete with identified supports and resources, has a strong argument for custody.
Sharing custody of a special needs child puts an enormous burden (psychologically and physically) on the child, who may not handle transitions well. Though the mother’s heart may ache for wanting to constantly be with her child, the father may be able to provide a better, more stable and supportive environment. Whatever is best for the child takes primacy.
Communication is Key to the Transition
Sole physical custody schedules sanctioned by Virginia courts must include reasonable parenting time with both parents, but that parenting time could take many forms:
- Virtual visits
- Several uninterrupted weeks around one parent’s work, duty or study schedule
- The visiting parent spends time at the child’s permanent home while the other parent departs (bird nesting)
Communicating clearly and often with the special needs child (in ways the child understands) will make any transition easier. Communicate also with all support services:
- School
- Medical professionals
- Counselors
Their input could make clear which parent should have either primary or sole custody, in the best interests of the child.
No matter how complicated your separation or divorce, the experienced attorneys at The Firm For Men can help. Contact us online or by calling 757-383-9184 today. Our team of Virginia Beach custody attorneys knows Virginia family law. We have handled cases involving the most challenging child custody, parenting time and child support issues.
