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2.3. Custodial Parental Rights and spinal cord injury

Divorce is difficult enough. Combined with a spinal cord injury, the situation is even more complex. If children are involved, it can be among the most complicated and emotional experiences life has to offer.

There are two basic issues involved in custody over children in any divorce. First, there is physical custody — which parent will the child live with. Second, there is legal custody — which parent is responsible for the child's healthcare, education, activities, and religious instruction, if any. Under "joint custody," a common arrangement, neither parent is deemed to have rights and responsibilities which are superior to the other.

Most courts use a legal standard that emphasizes the "best interests of the child" when deciding custody. This standard varies in any given situation and depends on many factors, including:

Typically, none of these factors clearly favor one parent over the other. In most cases, the courts then balance which parent is likely to provide the child with the most stable environment. For younger children, custody may be awarded to the parent who has been the child's primary caregiver. For older children, custody may be given to the parent who is best able to offer continuity in the child's education, neighborhood life, religion, and peers.

Parents who do not receive or share physical custody are usually granted visitation rights. Visitation schedules can be flexible or fixed depending upon the degree of hostility that may exist between the divorced couple.

In many jurisdictions, the factors identified above are set forth in a statute, and the courts must address them specifically before rendering any decision on custody. Because most courts are required to evaluate, and make specific findings on, a parent's state of health, the fact that he or she has a disability such as SCI is necessarily relevant — even though such judgments might appear to be discriminatory and unlawful.

For example, in one 1989-dated case, Slavish v. Slavish, a court in Delaware declined awarding joint custody to a father because his SCI and recurrent hospitalizations had caused him to cancel many visits in the past year. Nonetheless, the court ruled that it was "extremely important" for the father to have "frequent and substantial" contact with his children and so ordered generous visitation rights.

In a more recent, 2003-dated case, Brown v. Brown, a Connecticut court granted joint legal custody to a 58-year-old father with paralysis and depression. Based on her superior financial position, the wife in Brown was ordered to pay the husband alimony, but the husband was required to pay child support. The wife was also given primary physical custody, while the husband was awarded substantial visitation rights.

Another key issue is how to calculate the amount of child support a parent with a disability is required to pay. The majority rule, followed by more than thirty states, allows the Social Security dependency benefits which the government pays to children of disabled parents to be credited toward, and thus reduce, the disabled parent's total support obligations.

Because individual circumstances vary so greatly, few generalizations apply in divorce disputes. To avoid potential harm to any children involved, however, parties are encouraged as much as possible to use mediation services and to resolve conflicts by agreement, rather than litigation.

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