On occasion, I am presented with a unique situation where a client has a child with special needs. The client in this situation is very concerned about the Court taking the minor child's special needs into consideration when making a ruling about time sharing. In general, trial court are given the specific task of determining what ultimately is in the child's best interests. This definitely includes taking any special needs into consideration. Judges have great leeway in determining what, they think, is in the child's best interests after hearing all evidence regarding the family.
A very interesting case in the Third District Court of Appeals recently dealt with this issue. In Turnier v. Stockman, the parties' minor child was deaf from birth. The Father and Mother in this case were also deaf from birth. The trial court was asked to determining a time sharing schedule for the minor child. The Father lived in St. Johns County and the mother lived in Miami-Dade County. Ultimately the trial court ordered that the minor child should live with the Father during the school year in order to attend the Florida School for the Deaf and the Blind. The minor child resided with the Mother during the summer.
One issue in the case was whether the trial court should have appointed a Guardian Ad Litem for the special needs child. A Guardian Ad Litem is someone who is appointed by the court to speak on behalf of the minor child. It is an excellent tool to use when parties have a special needs child and will be able to inform the Court what special requirements are needed to adequately care for the child. Unfortunately, the parents in Turnier did not formally request a Guardian Ad Litem, and the appellate court held that it was not necessary to appoint one. However, the Appellate Court did say that The Florida Legislature may wish to amend section 61.401, Florida Statutes (2013), to require the appointment of a guardian ad litem in such unique circumstances as the one presented here.
Another option is to have an expert witness testify regarding the minor child's special needs. Unfortunately, in Turnier, the parents also did not utilize this tool. The appellate court ultimately ruled that an expert witness testimony is not required in order for the judge to make a decision about what is in the minor child's best interests. But, in my experience, the trial court welcomes expert testimony regarding the child's special needs. In Turnier, the trial court heard from both the father and mother, both of whom are deaf and therefore have particular knowledge of the communication and educational needs of a deaf child. Each testified as to his or her opinion regarding the minor child's level of communication. The trial court made its ruling based upon the parties testimony and the ruling was upheld by the appellate court.
I have no doubt that cases involving special needs children are some of the most difficult cases judges have to decide. In the best case scenario, the parents are able to put the minor child's needs above their own and come to an agreement about what is in the minor child's best interest. But, if you are unable to do so, then when you ask a judge to make the decision for you, there are tools out there that will help advance your position. As discussed, a Guardian ad Litem and expert witness testimony are two that are used in my practice. If you have a special needs child, contact your expert family law attorney to discuss what tools and options are available to you in order to ensure the best court outcome for your child and your family.