Disabled four year old boy studying or reading in wheelchair

In our last blog post, we reviewed the state legislature's significant changes to the "best interests" factors that Minnesota judges must consider when determining custody of a children in a divorce or action between unmarried parents. The revisions seem strongly to reflect the legislature's intention to make custody matters center on the needs of the child, rather than the desires of the parents.

The first factor listed is "a child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development." The second factor identified is "any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services." This factor seems to dictate that consideration of special needs is a matter of importance; the previous version of the statute simply dictated that judges must consider "the mental and physical health of all parties involved."

How Special Needs May Affect Minnesota Custody Determinations

Since the legislature has made an effort to take note of the impact of a child's special needs on the best possible custody arrangement for that child, let's consider what the new language of the statute may mean for parents. There is a broad spectrum of special needs that could fall under the language of this factor; autism, diabetes, and developmental delays spring immediately to mind, but there are many others. Because the revised factors have been in effect only since August 1, 2015, it's unclear exactly how this new focus on a child's special needs will affect parenting arrangements.

It's easy to imagine that if a child receives extensive therapy for a physical, mental, or developmental issue, the fact that one parent lives much closer to the therapy center than the other would mitigate in that parent's favor. A child with a chronic illness that one parent's schedule is better equipped to handle might require that the parent who is available to address the child's needs has more time. A child who needs to attend a particular school to receive certain needed educational services might be better off living with a parent whose location gives him or her easier access to that school. Also, a parent's unwillingness to cooperate with a treatment or educational plan is not likely to be viewed favorably. Under the previous factors, this was certainly considered but not as clearly as this factor implies.

One very common situation with children with emotional or mental health issues is difficulty transitioning from one situation to another. For such children, a custody arrangement in which they are constantly switching back and forth between parents could be disastrous. The new "best interests" factor addressing special needs may make it easier for children to be with one parent, or each parent, for longer periods, minimizing stressful transitions between homes.

There could be some overlap of this factor with factor (6), which examines "the history and nature of each parent's participation in providing care for the child." If a child has special needs, and one parent is always taking that child to therapy or doctor's appointments, or providing therapeutic treatment at home, under which factor should that care be considered?

Protecting Your Special Needs Child in a Custody Determination

Divorce and custody disputes are stressful for all children. If you have a child with special needs, particularly one who has difficulty with transitions, you are probably concerned about protecting your child both during the custody determination and afterward. It's essential for parents to know their children's teachers and therapists, medication regimens, and signs that they need extra support. This awareness is likely to reflect favorably on you in a custody dispute, but more importantly, it helps you to make sure your special needs child is getting the help he or she needs at a particularly challenging time.

If you have a child with special needs and expect to be involved in a Minnesota custody dispute, you should have the guidance of an attorney who understands the intricacies of both Minnesota custody law and the issues of children with special needs. Please contact us at Mundahl Law with any questions you have about this, or any of the other Minnesota best interests factors and how they could affect your custody case. We look forward to working with you.