Custody Battle Caused by Child’s Disability

In 2004, Wife [W] and her three young children were in a terrible motor vehicle accident.  The accident killed one child, and left another one with permanent brain damage [D].  She is in need of constant medical attention and therapy.  Neither W nor the third child, another daughter, [D2] suffered permanent injuries.  A civil law suit was filed and settled with D receiving $20,000 month for life for medical treatment and caregivers; W receiving $2.4 million; and H received $1.2 million.

In 2006 W and Husband [H] had another child, a son [S], and in 2009, H petitioned for divorce.  The accident and subsequent care of D placed too many stresses on the marriage and it crumbled.  The divorce was finalized in 2012; however, custody issues continued for the next ten years.  Both H and W often returned to court and would petition to change joint physical custody to sole physical custody; or joint legal custody to sole legal custody.

In 2017, at a modification hearing to change H’s visitation schedule with the children, the court decided to give sole legal and physical custody of D to W, and sole legal and physical custody of D2 and S to H.  The court stated: [I] find the notion of [W] being sole custodial or even joint custodial of [D2.] and [S] when she is the sole custodial or if she is the sole custodian of [D] is a real problem.  That is not going to work.”  The trial court also found that D’s “extraordinary emotional, medical, and educational needs created compelling circumstances requiring the court to separate the siblings in terms of custody and visitation.”  Lastly, the court negated the argument regarding the bond between the siblings as a reason for not separating them, stating that “bonding runs two ways,” and D’s handicap rendered her incapable of recognizing her brother and sister, and incapable of providing them with any emotional support.  W appealed.

The Appellate Court reversed the trial court.  First the court noticed that neither W nor H requested a change of physical custody of the children, and that the court made the modification on its own.

Regarding the modification itself, the Appellate Court stated, “Nothing in the record demonstrates the trial court weighed [D2’s and S’s] interests in the stability of their current custodial arrangement.  The court did not address the potential harm to [D2 and S] from losing [W] as a custodial parent.  The court lacked any evidence [W’s] care for [D] and her serious medical needs resulted in deficient care of [D2 and S].

Regarding the issue of whether D2 and S were bonded as siblings to their brain-damaged sister, D, the Appellate Court said, “We recognize California public policy that the sibling bond should be preserved whenever possible.… The trial court determined [D’s] medical condition was evidence of compelling circumstances warranting separation of the siblings.  It ignored established precedent that a disability is not automatically evidence of compelling circumstances… [T]here was no evidence [D] could not participate in a sibling relationship.  Admittedly, such a relationship would not function as a ‘traditional’ older sister with her younger siblings, but that is not, and should not, be the test.  The court is not to judge a familial relationship based upon a preconceived notion of what a ‘normal’ sibling relationship looks like.  Testimony demonstrated the siblings had mutual bonds and [D’s] cognitive state was akin to that of a one-year-old to 18-month-old child.  Children of that age indeed have relationships with their families, and dismissing the impact of separating the siblings based purely on [D’s] disability was [reversable] error.”

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