Divorce is rarely an easy process, but the emotional and legal challenges of divorce escalate when divorcing spouses have a child with special needs. Colorado’s divorce court decisions must meet the state’s standard of a child’s best interest. Under Colorado Revised Statute §14-10-124, the state describes this standard in the following way:
“…In most circumstances, it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage.”
When a child has special medical, educational, and/or emotional needs, meeting this standard requires special considerations. Call our proven child custody lawyer in Denver for a free case review.
Typical post-divorce parenting plans include a child custody schedule. The parent with the greater number of overnight custody days becomes the primary custodial parent, and the other parent has visitation rights. Under the best interests of the child standard, the court considers near equal custody, facilitating continuing close contact with both parents as in the child’s best interests, unless one parent proves otherwise. However, meeting this standard becomes more challenging when a child has special needs that make transporting and transitioning them regularly between two households difficult for one or more of the following reasons:
In addition, the court carefully considers each parent’s history of daily interaction and caregiving of the child to prevent an unnecessary disruption of the child’s physical and emotional care continuity. Depending on the individual circumstances of the case, the court may consider fewer transitions between households to be in the child’s best interests rather than equally shared physical custody between both parents.
A child’s custody schedule and special needs also impact child support calculations in Colorado.
In typical child custody cases, a judge determines whether or not parents can communicate and compromise effectively to make shared decisions on crucial aspects of a child’s care and upbringing, including medical and educational decisions. If parents demonstrate a willingness and ability to make decisions together, they share legal custody; otherwise, the judge may award decision-making authority to one parent.
Legal custody refers to which parent has the ultimate authority to make important decisions for the child regarding their medical care, education, religion, and extracurricular activities. Legal custody may be shared between both parents, or one parent may have sole legal authority over the child.
This decision requires special consideration during a child custody decision for a child with special needs. For a special needs child, parents are required to make far more medical decisions and educational choices for their child compared to typical children. It’s not uncommon for divorcing parents to disagree on crucial aspects of their child’s care. In these cases, a judge carefully considers each side’s arguments before awarding legal decision-making custody to one or both parents.
There are two ways to accomplish child custody and parenting time schedules in Colorado: either through an agreement created by the parents with the assistance of their attorneys and a professional mediator, or by presenting arguments in court for a judge to decide. Arriving at a mutually acceptable agreement that the judge agrees meets the best interests of the child is always the optimal outcome for Colorado child custody cases. When a child has special needs, it’s even more beneficial for parents to make the ultimate decisions, as they have unique insight into their child’s needs.
Child custody is divided into two categories: physical custody and legal decision-making custody. Each has unique considerations for a special needs child compared to typical child custody decisions. The parents’ child custody and decision-making custody arrangement must meet the court’s standard for the child’s best interests in uncontested custody cases. In a contested child custody case for a special needs child, the judge hears arguments on both sides and determines both types of child custody, meeting the standard of the child’s best interest.
Physical custody refers to with whom a child resides. Colorado considers continued close contact with each parent to be in a child’s best interests, unless evidence shows otherwise. Generally, divorced or non-married parents share custody equally or on a schedule that works best for them through a shared parenting-time schedule.
Creating a physical custody schedule for a special needs child is often complex, due to specialized concerns for a child who may need assistive medical or mobility equipment or requires a stable, consistent daily routine for their emotional well-being.
Another crucial consideration is which parent has provided the majority of the child’s daily hands-on care. Consistency of care is essential for a child with special physical and/or emotional needs, making it more likely for a judge to deviate from the equal custody goal and award primary custody to the parent with the most daily experience caring for the child and visitation to the other parent.
Also important to consider in a physical custody schedule for a special needs child is the distance between the parents’ residences, as well as the practical aspects of transporting the child and their medical equipment, medication, and other items required for their care.
Child custody cases during a Colorado divorce are often the most emotionally challenging aspects of divorce. They are also legally complex when parents cannot arrive at a mutually agreed-upon parenting schedule that meets the state’s standard of a child’s best interest. When a child has special needs, it often means that meeting their best interests looks different than it does in typical child custody cases. Contact Ciancio Ciancio Brown, P.C. for legal representation by a family attorney in Denver with experience in meeting these additional challenges.
