Best Interests of the Special Needs Child: Mandating Consideration of the Child's Mental Health

• Date: 01 January 2016
• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/fcre.12205

BEST INTERESTS OF THE SPECIAL NEEDS CHILD: MANDATING

CONSIDERATION OF THE CHILD’S MENTAL HEALTH

Hindi Mermelstein, Jamie A. Rosen, and Carolyn Reinach Wolf

There has been a considerable increase in the number of separation and divorce cases in family court involving special needs

children. However, most states do not consider the mental and physical health needs of the child in determining what is in the

best interests of the child. The special needs of the child due to a mental illness or behavioral disorder must be a statutorily

required factor when a court makes a custody decision and/or designs a parenting plan under the “best interests of the child”

standard.

Practitioner’s Key Points:

The existence of a mental illness or behavioral disorder in a child presents unique challenges to the family court in

determining custody and designing a parenting plan.

Commonly recommended parenting plans may not be appropriate for a special needs child, especially when that child

will require parental involvement beyond age eighteen.

The special needs of the child due to a mental illness or behavioral disorder must be a statutorily required factor when

a court makes a custody decision and/or designs a parenting plan under the “best interests of the child” standard.

Family court judges can consult with clinical experts to adequately understand the child’s needs and address them in

the custody decision and parenting plan.

Keywords: Behavioral Disorder; Best Interests; Custody; Divorce; Mental Health; Mental Illness; and Special Needs.

I. INTRODUCTION

In adjudicating child custody or designing a parenting plan, the court is required to weigh multiple

factors to determine what is in the best interests of the child.

1

In most states there is no prescribed

formula, only a list of factors that the court should consider, including the parenting skills of each

parent, the physical and mental health of the parents, domestic violence, existing custody agree-

ments, and finances of the parents, among others.

2

This list of factors to consider in determining the

best interests of the child, while not exhaustive, is heavily focused on the parents. Absent from this

list, and from the list of factors that most family courts in the United States consider in making a cus-

tody determination, is the psychological well-being and mental health of the child.

3

When a child

suffers from any type of mental health, psychiatric, or behavioral disorder, the family will likely face

a variety of challenges that must be addressed throughout the process of a custody dispute.

4

Custody decisions and parenting plans

5

for typical children do not contemplate many of the

unique decisions that must be made for those with special needs. Commonly recommended parenting

plans may not be appropriate for a special needs child, especially when that child will require paren-

tal involvement beyond age eighteen. First, children with special needs are more likely to thrive in a

structured environment, requiring “consistent and predictable routines” and “advanced preparation

for changes.”

6

Second, parenting plans must contemplate the child’s increased need for supervision

and/or professional intervention in order to ensure that the child has the necessary psychiatric, behav-

ioral, and medical support s/he needs. Lastly, an appropriate parenting plan for a special needs child

should provide flexibility, allowing the parents to plan ahead and hopefully avoid court intervention

to modify any agreements.

Correspondence: drhmermelstein@optimum.net; jrosen@abramslaw.com; cwolf@abramslaw.com

FAMILY COURT REVIEW, Vol. 54 No. 1, January 2016 68–80

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C2016 Association of Family and Conciliation Courts