How Is The Determination Of Custody Impacted By A Child’s Special Needs?

Howard K. KurmanPrincipal, Offit│Kurman

Types of custody

In Maryland, if parents separate (whether married or not) and they do not have a court order determining their custody rights, each parent, by default, has an equal right to make decisions about their minor child and to the physical custody of their minor child. Therefore, the parents need to either come to an agreement or leave it to the court to decide their child’s custody. A minor child’s special needs can add more complexity to these determinations.

There are two forms of child custody which need to be determined by the court (or agreed to by the parties) when parents split up: “physical” and “legal.” Legal custody is the decision-making authority to make long-range decisions that significantly affect a child’s life, including education and health care. Physical custody (also referred to as “residential” custody, “access” or “parenting time”) refers to the child’s living arrangement. There is no presumption in favor of shared custody in Maryland–whether physical or legal. The law does not favor one parent over the other. Instead, the court must determine the “best interest of the child” on a case-by-case basis.

Sole legal custody means that one parent has unilateral decision-making authority regarding the child. However, even if a parent has sole legal custody, the other parent still has access to the child’s educational and health records, unless the court orders or the parties agree otherwise. Shared legal custody (also referred to as “joint” legal custody) means that the parents share decision-making authority regarding the minor child. In order to determine whether shared legal custody is in the child’s best interest, the court looks to the factors in Taylor v. Taylor, including “the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare.” 306 Md. 290 (1986).

The ability to make decisions about one’s children is an especially fraught issue when parents split up who cannot agree on the existence or severity of a child’s special needs, psychological or medical condition, or they fundamentally disagree on the treatment for the child’s condition. Sometimes, in custody cases one parent denies the existence of a health concern or disability, even where the other parent has medical and educational records of the condition. This more typically occurs when the child has autism spectrum disorder, ADHD, learning disabilities, or anxiety.

Parents who cannot agree on special education issues make it easy for schools to refuse services and accommodations that a child needs. If two parents are in active opposition with each other about services, then the default position for a public school is to provide nothing. Furthermore, when both parents cannot agree on mental health treatment for a child, the child’s treatment is delayed, and the child suffers. If one parent, upon the advice of the child’s doctor, agrees to the child receiving medication for depression, but the other parent refuses it, the child’s treatment is delayed until the court determines legal custody.

When parents are unable to communicate effectively on major decisions regarding a minor child, the court may award (or the parties can agree to) joint legal custody with one parent having tie-breaker authority in the event the parents are unable to reach an agreement about an important issue. Santo v. Santo. 448 Md. 620 (2016). The court may award a parent tie-breaker authority regarding all decisions or just to certain limited areas of decision-making, such as medical decisions or education. Tie breaker authority is not intended to be de facto sole legal custody; if the court awards one parent tie-breaker authority, the parents must share information and make a good-faith attempt to reach a joint decision before the tie-breaker parent can exercise tie-breaking authority.

Parents can also agree to protocols for decision making, such as requiring the parties to go to a certain number of hours of mediation or parent coordination and/or that they consult the child’s health provider or specialist for his or her recommendation, before one party can institute tie-breaker authority. Of course, while such protocols do ensure input from both parents, they can also delay needed decisions to be made for the child. Parents can also include specific provisions about certain treatments and expenses (if known at time of settlement), but it can be difficult to provide for every contingency and the child’s treatments and needs may change over time.

Physical custody

Primary physical custody in Maryland generally means that the minor child has overnights with primarily one parent. Shared physical custody provides for a shared schedule of overnights but does not require a 50/50 split of time. In devising a shared custody schedule in the child’s best interest, courts often try to balance a child’s need for frequency with each parent with a child’s need to reduce transitions between homes. The geographical distance between each parent’s home and/or the children’s school, the children’s schedule, and any special needs of the children are important considerations in crafting a schedule.

In determining the physical custody in the child’s best interest, the court looks to the factors set forth in Montgomery County Dep’t of Social Services v. Sanders, 38 Md. App. 406 (1977) and the Taylor case. While the court looks to some of the same factors for both physical and legal custody, the court might determine that it is in a child’s best interest to have a shared schedule but for one parent to have tie-breaker, or that the parents should have shared legal custody with the child living primarily with one parent.

Children on the autism spectrum or with ADHD often can’t handle a lot of transitions between houses. The best interest of a child with significant autism or other needs might require an access schedule which is different from siblings. Although courts usually disfavor different schedules for siblings, a child’s special needs can be an exception. A custody evaluator should take a child’s special needs when making recommendations to the court. Likewise, a parent coordinator should take this issue into consideration when helping the parents determine an appropriate access schedule.