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Custody of Special-Needs Children

Custody of Special-Needs Children: It’s better to Focus on Quality Parenting Time, Not Quantity


In my mediation practice I often work with families with the special needs children.

I found this article by Melissa R. Gillis, Esq (attorney with the law firm Bacon Wilson, P.C.) and I believe it provides a lot of good information and advice to my readers.

A child-custody dispute — 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 stress of the conflict. Having a child with special needs, however, adds an additional layer of complexity, 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 of the special needs children must be sensitive to the necessary accommodations that these children require.

It takes a very mature thought process to understand that, what a parent wants, may truly be different from what is best for their child. For example, a child who suffers from separation anxiety, or who is autistic, or who has behavioral or sensory issues, may be best accommodated 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.

These children will certainly be less stressed if allowed to be with a particular parent every night. It doesn’t mean that this child doesn’t love the other parent just as much, but each parent fills a different and 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 alternating residences every other weekend and a few days per week, nor should they be forced into such arrangements. In this scenario, a non-custodial, or secondary parent must be able to put aside their desire to have extended periods of time with their child so that their child feels comfortable and able to be successful on a daily basis. Likewise, the custodial, or primary, parent needs to be sensitive to the secondary parent’s painful reality.

It is parents’ responsibility and obligation to ensure that their children transition to their new circumstances to be as smooth as possible. It is also each parent’s responsibility and obligation not to place their children in the middle of their own conflict. That includes not communicating with each other or exchanging anything through their 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 more 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 the best for that particular child given their specific needs.

A parent can also request that the court appoints a guardian ad litem to help. This person is a trained and neutral third party who will investigate, report, and draw conclusions about what accommodations will be best for the child, given the totality of the circumstances. In the extreme cases, a primary parent may need to consider seeking the sole legal custody, to avoid constant present and future problems when making medical and educational decisions for the child. Remember, oftentimes these decisions need to be made 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 parenting time arrangements for children with special needs frequently don’t follow traditional patterns, there are many factors to be considered. They include:

  • Does the school district where the child attends a school have a residency requirement, and if so, what schedule will potentially jeopardize the child’s educational plans, services, and accommodations?
  • Does the child have an ability to make smooth or frequent transitions between houses?
  • Will the child have an unimpeded access to the other parent via telephone, text messaging, e-mail, FaceTime, or Skype?
  • What is the child’s tolerance to being away from the primary parent for extended periods of time?
  • What do the words ‘extended period of time’ mean in terms of what the child will deem stressful?
  • Is there more than one child in the household, and if so, should parenting time be different for each of the children?
  • How long will it take for a child to adjust to moving back and forth between the households, and how is the child, in general, dealing with the separation of his or her parents?


As a possible modification of a traditional parenting plan, there are many creative options. For example, overnight stays may occur only on the weekends and not during the school or work week. For a child who struggles with overnight stays all the time, consider having more frequent dinner or after-school visits instead. Alternatively, structure a schedule that increases the number of overnight visits 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 young. These solutions can satisfy the secondary parent’s desire to be with their child while recognizing what makes this 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 to a child are the respect and the acceptance of their needs, feelings, and limitations. Sometimes that means letting go of the inter-parent struggle and sacrificing quantity for quality.


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