Does a change in health warrant a change in custody?

Changes in the physical or mental health of one of the parents, or of the children, can require a change in custody or visitation rights….but not every kind of health situation will lead to a modification of the current custody order. The ultimate test remains the “best interest of the child.” Therefore, if the new health development is adversely affecting the child’s interests, then a court may be prompted to make a change.

A parent who is emotionally unstable, and who manifests her instability by a series of outbursts, arrests, violent confrontations, or erratic episodes may lose custody. A party plagued by alcoholism can also lose custody. A party who is suicidal or otherwise dangerous to himself could face the same consequences.

However, physical disabilities are not so clear. In Hatz vs. Hatz, an appeals court in New York held that a mother could retain custody of a child, even though the mother was rendered a paraplegic in an accident. In another case, Marriage of Carney, dating back to 1979, the California courts refused to take custody away from a father who became a quadriplegic in an accident. In each of these cases, the court found that despite the parent’s disability, the child were still well cared for, and — all things considered — the injured parent was still the better choice.

The courts have also generally refused to take away custody or visitation rights simply because a parent contracts a sexually transmitted disease. Yet, when a parent’s behavior is sexually promiscuous, violent, emotionally unstable, or otherwise dangerous to the child, a court may treat such behavior as a mental health problem and transfer custody to the healthier, more stable, parent.

A child’s health condition generally does not affect custody rights. Thus, for example, a child with a physical disability or one with psychological impairments, is not necessarily better suited to one parent or another, unless one parent clearly cannot care for the child under the circumstances. On the other hand, if the evidence shows that a child’s psychological problems are attributable to the psychopathic or emotionally disturbed conduct of a parent, then the court may very well transfer custody.

Ultimately, there are many factors that must be considered: The number of children involved, their ages, their maturity levels, the nature of the parent’s or the child’s health problem, the requirement for treatment and monitoring, the ability and capacity of the parent to provide leadership, supervision, safety and protection to the children, and the extent to which the normal lifestyle of the children will be disrupted by the special needs of the disabled parent.

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