Chronic Illness Not Always Basis For Custody Modification

On behalf of The Marks Law Firm, L.L.C. posted in Motion to Modify, Child Custody, and Chronic Illness on Friday, May 30, 2014

One of the most gut-wrenching issues courts must confront in custody cases involves a parent who becomes stricken with a chronic illness that renders some permanent change to the physical or mental condition of the parent.  Suddenly, two parents who had been co-parenting successfully may need to modify the custody award and parenting schedule because of the new limitations of the ill parent.  How do courts handle this difficult choice?

Courts must by statute take into consideration the mental and physical condition of each parent in making a custody award, but that factor alone is not controlling.  Often, the court will appoint a guardian ad litem to investigate the medical condition of an ill parent and determine if the illness has so negatively impacted the parent that he or she cannot safely care for the minor child.  A parent that becomes ill and has a strong support system may be able to balance the legitimate concerns for meeting the needs of the minor child with the stated public policy of encouraging frequent and meaningful contact between the minor child and both parents.

Recently, the Eastern District of the Missouri Court of Appeals revisited this situation in J.T.P. v. P.F.  In 2002, mother had a debilitating stroke that left her with long-term cognitive impairment and a “borderline” intelligence.  The next year, she met father and began a relationship that produced a child in 2005.  Mother decided not to continue the relationship but moved into her own place with her two older sons from a previous relationship.  Father filed a paternity suit and the court granted the parties joint legal and physical custody with 50/50 physical time.

In 2010, father filed a motion to modify seeking sole legal and physical custody, alleging that mother had become “neglectful and uncooperative,” apparently related to her physical condition, and that he worried about her having so much physical custody time now that the child had begun school and she lacked the ability to help him academically.  A guardian ad litem and two additional experts conducted thorough assessments and found the child had not suffered under the joint custody arrangement and did very well in school.  The trial court found no change in circumstances, but nevertheless altered the physical custody schedule to give father considerably more time.  Both parties appealed.

The Eastern District found that once the trial court made a finding of no changed circumstances, the trial court could not make any modifications, as a change in circumstances is a prerequisite to a modification.  The appellate court further stated that the record would not support a change in circumstances – the trial court knew of mother’s condition at the time of the original judgment, no evidence indicated she had become more debilitated, and all evidence showed the child had been flourishing.

We do not mean to suggest that all parents with severe physical or mental conditions will receive joint physical custody; that determination is strictly a case-by-case determination.  We do note that the mother in this case had a strong support system, living with her mother, stepfather and adult sister, and could otherwise perform well as a mother.

When dealing with a parent who has a serious medical condition, both parents will want to support their positions with documented evidence of ability (or lack of ability) to parent safely and successfully in the best interests of the child.  These cases will require medical experts and a guardian ad litem, and can become quite complicated.  An experienced attorney will know how to navigate through these challenging waters.

If you have questions about child custody where a parent has a chronic illness, contact us – we can help.

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