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

Abstract

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.