It’s hard to have a child with special needs. In this instance, I’m defining “special needs” pretty broadly, to include anything from a child so disabled that he or she will never live independently, and something as small as a general IEP or 504 plan for ADD.
A “special need”, as far as I’m concerned, is anything that means your child might need a little extra attention or help along the way.
Unfortunately, in all too many custody cases, the parents disagree about the extent to which a child suffers from a disability, or, sometimes, whether a special need exists at all.
The typical scenario is this: mom says that a child is a particular way, and dad resists. From his perspective, mom is babying the child too much. There’s nothing that wrong, certainly nothing that might be as severe as what mom is reporting.
In the case of a child who is unable to live or work independently, he’ll argue that the child could, or that proper training or a specific job exists that the child would be able to do. He will do this in an effort to avoid paying child support to the child’s mother indefinitely, which, under certain limited circumstances, is something that does sometimes happen.
In the case of a less serious diagnosis, he’ll often dispute its existence completely. He’ll argue that mom made it up or is imagining things. That mom is crazy, or an enabler, or not tough enough on the kid — whatever. Sometimes he’ll accept the diagnosis, but deny its severity.
What can you do, if this happens to you?
It’s quite common, in custody cases, for a child’s father to accuse the mother of coddling or, failing that, of absolute insanity, especially where her children are concerned.
Though its easy to feel indignant and angry when your child’s father behaves this way, especially after the years and years of dismissive behavior you may have experienced during the relationship itself, it’s best not to react quickly or emotionally.
You know your child, and it is your job to advocate for him — even if the person you’re advocating against is your child’s father.
In many cases, this is a long game. But you know your child, you know the doctors, you know the diagnosis — and you can play the game, if you get your wits about you and do it effectively.
You may think, “What’s the big deal? This is easy. I can testify about his diagnoses, and even provide a list of medications or a letter from his doctor for the court to review!”
It isn’t actually quite that easy, even if you have a specific diagnosis — though, certainly, your testimony will help.
We can’t get a letter in without having the person who wrote it there to authenticate it, and to be present for questioning and cross examining. It’s all part of the whole “due process” thing guaranteed to us by the Constitution. Rather than bringing a letter from the doctor, you’ll want to bring the doctor himself. That’s not a problem, we can subpoena him, but it usually does cost. Not only that, but if you’re getting into medical diagnoses, medicines, treatment, and prognoses, you’ll want an attorney there to question and cross examine the doctor.
The same goes for a therapist, if we’re talking about a mental illness.
Another tricky tip? Questioning your child’s father on cross examination about the doctor, treatment, medicine, and other items related to the child’s medical care. If dad doesn’t know the answer, or seems to struggle to discuss the characteristics of a condition that we can establish that the child has, it makes him look like a less involved parent. If we can show that he’s out of touch or unaware of the things that the child needs, well, that’s a whole best interests of the child argument right there.
I’m right there with you, and I completely understand how baffling and frustrating and downright infuriating it must be to have a coparent who refuses to acknowledge what’s right there in front of him. Whether he just can’t accept that a child of his isn’t an NFL powerhouse or a Harvard-level prodigy, or whether it’s something that he’s doing specifically because it gets you riled up, refusing to acknowledge and treat a child based on a legitimate medical diagnosis doesn’t show property, effective, appropriate parenting.
What if my child doesn’t have a diagnosis?
That’s okay, too. It’s not always perfect timing with these cases; it could still be that you’re working with a team of doctors, teachers, therapists and/or specialists to determine what the problem actually is. That’s fine! Still, same drill — we call the experts as our expert witnesses, and we establish as fact that which we already know.
It may not be an actual, formal diagnosis, but we can raise the doctor’s specific concerns, and discuss options for treatment. In fact, at this stage, there may be more possibilities that your child’s father just isn’t aware of and can’t intelligently discuss, which would be an opportunity for you to shine even more brightly.
I’m not worried about a diagnosis or being able to point to a specific condition; I want to show that experts have agreed that there’s something amiss, that they’re working towards a solution, that you’re an active and effective part of that, and that your child’s father is holding back, resisting, or refusing to accept the truth that’s in front of his face.
Moms have a special sense about their children. Just like you probably pushed (or are still pushing) to get the diagnosis, you have to push the court (and, sometimes, your child’s father) to recognize that your child is unique, and a unique custody and visitation arrangement is appropriate. All children are unique, of course — but, in your case, you’ll actually have the tools at your disposal to prove it, and effectively argue for what your child needs.
For more information, request a copy of our custody book, or give our office a call at 757-425-5200 to schedule a confidential consultation with one of our divorce and custody attorneys.