About 65% of the inquiries I receive in my California Family Law Practice revolve around California custody matters. If you have read any of my previous blogs or information from the family-law section of my website, you already know that there are many factors for a California Court to consider when awarding custody. This blog post focuses on the factor of physical handicaps in custody cases.
While not often discussed or considered a factor, physical handicaps are a factor for the court to also consider when awarding custody. There is the physical handicap a parent; there is the physical handicap of a child; and/or, the physical handicap of a sibling. As with everything else discussed in my blogs regarding custody, a physical handicap is but yet another factor for a California family-law judge to consider.
You may be surprised to learn that a California court will not determine custody solely on the basis of a parent’s physical handicap. Instead, the California courts will look to the family as a whole and how the parent’s physical handicap affects the family. (See Marriage of Carney (1970) 24 C3d 725, 736, 157 CR 383, affecting custody and visitation determination involving a disabled parent.) This case was “codified” into law—a fancy way of saying it was made into a statutory code—Family Law code section 3049.). Ultimately, the question a California judge needs to determine is whether or not the parent’s handicap is against the child’s best interests. For instance, does mother’s blindness affect her ability to properly care for the child? Does father’s paraplegia prevent him from properly caring for the child? You’d be surprise to learn that the answer is not an automatic “no.” For the California, it’s a matter of degree.
Sometimes, one sibling’s physical handicap is such that it would be detrimental for the child and sibling to live together. For example, a sibling who has bouts of uncontrolled rages and regularly attempts to harm his or her sibling; or, the handicapped sibling’s disability is so severe that it consumes the majority of parent’s time resulting in the parent being unable to properly care for the healthy child. As with everything else, the court will examine the degree and severity of the sibling’s handicap or disability in order to determine whether the healthy child’s need and best interests will be served in the custodial parent’s care.
Whenever possible, the California Courts will attempt to keep the siblings together because, as general rule, this is in the best interest of the children. So, if the court divides the children it is because the court has considered compelling evidence to determine that it is in the best interest of the children—either the handicapped child and/or the healthy child to keep them separate.
When a child is handicapped and the subject of a custody dispute, the court will look to any and factors affecting the handicapped child’s best interests. In such a unique case, the court will identify the child’s disability or handicap, the type of care needed to sustain themselves, the amount of time a parent needs to devote to the child and each parent’s ability to meet the physical, medical and emotional needs of the child.
Consider the following fact scenario: Mother is a doctor specializing in family and internal medicine; Father graduated from medical school but never took the test to become a doctor; thus, Mom has been the primary financial provider for the family throughout the duration of their long-term marriage. Their 16 year old son suffers permanent brain damage from a skate-boarding accident in 2010. In 2011, Mother is diagnosed with breast cancer resulting in the need for Mother to undergo a double-mastectomy surgery, chemotherapy and radiation. The net effect of these medical procedures causes Mother to experience chronic fatigue and physical pain every minute of her life. As for the son, he requires 24-hour medical care and attention 7 days a week, 24 hours per day. While the family would qualify for the services of in-home care for the child, the services do not provide service 7/24 service. In this situation Mother is medically qualified to care for the child—especially during the periods where there is no in-home care for the son. Also, Mother has the patience and softness needed to care for the son—despite her enduring pain and chronic fatigue. On the other hand, father is the healthiest of the family. While he is not a doctor, he has some medical knowledge. Also, father has the energy that mother does not have to care for the child. Unlike mother, however, he has little to no patience and gets very angry and frustrated at the son—who I forgot to mention—can move only his eyes. He cannot move any other muscles, limbs or talk. When father is frustrated, which is most of the time, he is very rough with his child when he is, for instance, changing his tracheal tube. The nurses all prefer that mother be granted custody of the son.
The facts I just provided are based on an actual case of mine. In this situation, the mother and the child were both physically compromised and handicapped. As you can see, this scenario is not so black and white. In fact, most custody cases are not black and white—this is why they are so complicated. If you were the judge, how would you decide?
Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting their own research on their particular legal matter. Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.
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