Navigating Colorado Custody Cases When a Parent or Child Has a Disability

Navigating Colorado custody cases when a parent or child has a disability can be a challenge. Divorces that include child custody disagreements are complicated enough. When a parent or a child has special needs due to a physical or mental impairment, it can be even more difficult to allocate parental rights and visitation. However, it’s not impossible to find a workable arrangement.

Getting past systemic biases is often the key. Reaching a fair and satisfying parenting plan requires seeing a so-called “disability” for what it is in the context of the specific parent-child relationship.

When a Parent Has a Disability 

Some parents in child custody disputes assume that if the other party has been diagnosed with a physical or mental impairment, their case will be cut and dried. This presumption is usually wrong.

In fact, Colorado courts are statutorily oriented to seek a parenting plan that’s “in the best interests of the child.” The statute lays out several important factors for determining what that is. They are listed and described in part 1.5 of Colorado Revised Statutes 14-10-124.

A significant factor is the mental and physical health of all individuals involved. This includes both parents, all children, and any other people who play an important role in the child’s life.

Disability is No Barrier to Custody 

Parents with physical and mental disabilities used to have a tough time in child custody cases. This was due to preconceived biases about physical limitations, and the stigma of mental health challenges.

For instance, take a mother who is legally blind and can only partially see in extremely bright light. Until her divorce, she counted on her husband to help her make sure their toddler didn’t hurt herself. In 2000, this mom might have hoped for joint decision-making responsibilities and supervised parenting time.

But, in 2018, Colorado addressed discrimination against parents with physical or mental health challenges with the Family Preservation For Parents With Disability Act.

The law provides the following protections:

• A disability cannot be the basis for restricting or denying custody or visitation. There must be a clear reason why the disability could hinder the parent’s ability to meet their child’s needs.
• A disability cannot be the basis for denying guardianship, foster care, or a private or public adoption when the arrangement is already deemed to be in the child’s best interests.
• When deciding custody and parenting time, courts must consider the availability and benefits of accommodations that can help people with disabilities fulfill their parenting responsibilities, and …
• Colorado’s welfare agency must provide reasonable accommodations to parents with disabilities, and their families, based on individual need.

With this law in place, circumstances have improved for disabled parents in Colorado.

Today, courts realize that the legally blind mom in our earlier scenario is not automatically unfit due to her visual impairment. Rather, it is merely an obstacle she must deal with. Special training and common-sense accommodations — such as placing small bells on the child’s feet — help the mother overcome her near-blindness when she’s with her daughter.

Addressing Mental Health Concerns

It’s possible to overcome many physical challenges, such as limited mobility and sensory impairment, when a parent is determined. Mental health issues can be something else entirely.

Any court presiding over a child custody matter must investigate all allegations of mental instability against a parent. Whether the allegations arose from a few isolated incidents or a pattern of worrisome behavior, a professional assessment is required.

In fact, an expert’s evaluation is mandatory if one party in a custody dispute files a motion for it.

“Colo. Rev. Stat. § 14-10-127(1)(a)(I) (2010) obligates a trial court presiding over a dispute concerning the allocation of parental responsibilities to order an evaluation of a parent’s mental fitness on a party’s motion absent a finding that it is made for the purpose of delay. Because the statute is mandatory, a trial court has no discretion to deny a proper motion for evaluation.” — In re Marriage of Hall (Colorado Supreme Court, 2010)

How Courts Determine Mental Fitness

Mental disability is an umbrella term taking in a variety of specific, but different disorders such as:

• depression,
• anxiety,
• bipolar disorder,
• schizophrenia,
• attention deficit disorder, and
• substance abuse

Courts have ways to determine a parent’s mental or psychological fitness to care for a child. These include:

• Recognizable patterns of domestic violence, child abuse, or neglect: These are troublesome signs indicating a history of the parent’s mental illness affecting the health and safety of their child.
• A psychiatric evaluation: As noted above, a judge will order an evaluation of one or both parents if either party requests it. Psychological testing helps the court understand a parent’s mental state or diagnosed disorder and how it can affect their ability to care for their child.
• Medical records: Due to HIPAA laws, many medical records are protected and cannot be used in court. However, testimony from relevant experts can be used to show that a parent presents a danger to their children or themself and others.
• A history of substance abuse: A parent’s chances of obtaining custody can be seriously damaged if a judge becomes aware of a drug or alcohol problem. The court can order a drug or alcohol screening and even require the parent to submit to testing before having parenting time with the child.

An Opportunity to be a Parent 

Even if a court determines that a parent has struggled with a mental disability, it does not mean they are blocked from getting custody or visitation. Courts are more interested in seeing how the specific mental health issue is being addressed. A parent should have a fair opportunity at parenting.

For example, is the parent in counseling or treatment? Are they taking any medication as prescribed? Or has the parent refused to get help?

The Court’s Discretion

Colorado courts act in the best interests of the child. Judges have latitude to allocate parental responsibilities and parenting time to fit each specific situation. If a parent’s health issues prevent them from having primary custody, the judge can still grant shared custody and visitation rights.

If a parent’s mental health issues are backed by a history of neglect or violence, then the court can order supervised visitation. In other words, the parent could only spend time with their child while another adult is present. If the parent’s condition improves, they can then request a modification of the post-decree custody arrangement.

When a Child Has a Disability

All children have particular needs. This is why Colorado courts prioritize those needs in matters allocating parental responsibilities and visitation. However, when a child of divorce is also struggling with physical and/or mental health challenges, it’s even more imperative that courts carefully look at child custody matters.

C.R.S 14-10-124 (1.5) sets down nine factors courts must consider when determining how to divide parental responsibilities and parenting time in contested custody cases.  These include:

1. The wishes of the parents;
2. The wishes of the child if he or she is mature enough to express a preference;
3. The effect of others who significantly affect the child’s best interests;
4. How the child may adjust to a new home, school or community;
5. The mental and physical health of all individuals involved. Remember: a disability alone is not enough justification to deny or restrict parenting time;
6. The child’s overall safety;
7. Whether the parents have a history of showing love and support for the child;
8. Whether the parents live close enough to each other to share parenting time;
9. The ability of each party to place the needs of the child ahead of his or her own.

Each of these determiners must be considered even more closely when it comes to a child with physical or mental limitations.

Normal Needs vs. Special Needs 

All children need love, support, and stability. All children also must have access to food, shelter, clothes, education, and good medical care.

Children with physical or mental impairments have needs that go beyond the basics. Some kids can require near round-the-clock care and supervision, based on their disabilities. Because of this, it is crucial to consider not only whether each parent can place the child’s needs over their own, but which one has consistently already done so.

Example: A Child with Cystic Fibrosis 

A child with Cystic Fibrosis requires airway clearance therapy two or three times a day to keep mucus from building up on their lungs. Younger children with this condition are not strong enough to administer the treatment to themselves. A child with C.F. also requires a daily regimen of enzymes-boosting medication and must be kept as germ-free as possible, as any infection could lead to hospitalization. Both parents may love this child. However, the one who set aside a career to make this child’s care regiment part of their daily routine would likely be the primary parent after a divorce.

Special Equipment and Accommodations 

A child with special needs will likely require specific foods, medicines, or certain medical equipment as part of their day. If a home has been renovated in order to suit the child’s accessibility needs, then the parent in that home will likely have primary responsibility. However, the parents can work out an agreement on where the child will live and where any medical supplies or equipment shall be kept.

Talk with a Dedicated Family Law Attorney About Your Child Custody Case

If you have questions about allocation of parental responsibilities, parenting time, mediation, or any family law matter, give us a call. Our family law attorneys can discuss your case, rights, and options. Call 303-688-0944 to begin your case assessment.