As we emerge from the pandemic, one of the most frequently asked questions parents might have regarding custody is to what extent a parent’s illness can affect pending or existing custody decisions or arrangements.

In many cases, when the medical condition of a parent is brought up in custody matters, the illness is mental in nature, leading one parent to argue that the other is unfit to care for the child due to their history with mental illness, psychological or psychiatric treatment or lack thereof, or their use or neglect of prescription medication to treat a diagnosis.

However, what happens in cases where the illness is physical in nature, such as cancer? Or, in the case of COVID-19, is easily transmittable.

It is critical to begin any discussion of parental medical issues by recognizing that most courts are hesitant to make long-term or permanent changes to child custody based on a parent’s medical condition. In the same way that judges are often reluctant to order changes in custody due to a parent’s job loss or financial troubles, the idea that a parent may permanently lose custody or parenting time due to his or her illness is disfavored.

However, if a parent’s medical condition worsens significantly, such that it renders their ability to parent the child questionable, judges may order a shift in custody. A change in custody may be needed, for example, if a parent suffers from substantial behavioral changes due to mental, cognitive, or physical disabilities. In most circumstances, a judge will endeavor to make changes to a parenting arrangement that are temporary and/or reversible. However, the longer a parent’s illness or disability lasts, the more likely temporary orders affecting child custody may be difficult to modify later.

What Options Does a Parent Have When They Become Sick?

Generally, when one parent falls ill or gets injured, they can rely on the other to take over and care for the child until they recover. Typically, in cases of the flu or common cold, it doesn’t make much sense to get the courts involved or formalize any sort of new parenting time plan. Even if the medical issue persists for more than a week, conditions lasting for less than a month would generally not give the courts enough time to hear the issue and decide any custody modification, considering the volume and backlog of cases in family court.

That being said, the severity of the condition and the circumstances can affect the court’s willingness to make a temporary change in a parenting time plan. For example, if a medical condition were to completely incapacitate a parent, such as a coma, it would likely require the issuance of an emergency order. In the same example, if giving the non-custodial parent additional parenting time would be a serious disruption to the child’s life, the custodial parent could seek some form of temporary guardianship of the child until the custodial parent has recovered.

In short, most illnesses that do not incapacitate the custodial parent will not alter the parties’ custodial terms as long as that parent is able to maintain control of their facilities and cooperate with the other party involved. Equally, the longer and more serious the illness or disability, the more likely the courts will consider a formal change to the established parenting order.

How Do Family Courts Settle Issues Regarding Custody Modifications for Sick Parents?

Family Court will settle custodial conflicts if the parents are unable to come to an agreement on a modification to the parenting plan or custody arrangement. The child’s best interests will be the main consideration in the court’s decision, as they are in all other child custody cases. The judge will most likely make an order that allows the child meaningful access to both parents while also ensuring that the child receives the necessary care.

Most judges take great care when dealing with sick or injured parents to prevent the perception that they are being “punished” for their impaired condition by changing custody. Judges must evaluate each parent’s ability to parent objectively. The court must take into account the fact that a parent’s impairment may have a direct influence on how well they are able to care for the child when creating a parenting plan going forward. However, those that seek to use a parent’s disability as leverage in a custody battle could risk alienating the judge, as disability is not inability, and there is no reason to generally conclude that disabled individuals cannot be great parents.

Protecting Your Rights as a Disabled Parent

Being disabled or ill alone does not automatically justify denying custody or restricting visitation. However, the problems you have as a result of the condition that affects your capacity to raise and nurture your child may result in a custody ruling going against you, particularly if you fail to get and follow proper treatment.

While it may be an uphill battle to maintain custody of your child, there are methods that can be used to improve your odds, such as showing what support systems you have in place, that you have sought and complied with medical recommendations, and what tools you have accessed to assist you in safely raising your child while dealing with your medical issue.

For example, New York has many community support services to assist those with permanent or longstanding disabilities when it comes to providing for and taking care of their families, including the New York State ARC and Easter Seals. Additionally, the disability itself can function as a form of community, which, if properly presented, could be considered by the court as a positive support option rather than a drawback.

Regardless, your illness or disability status should rarely be the sole determining factor when it comes to being involved in your child’s life. It is critical that, if you are faced with a similar situation, you understand how to properly demonstrate your parenting abilities and support systems so that you can retain some form of custody over your children.

Molly Graham is an associate at Tully Rinckey where she focuses on family and matrimonial law. In addition to family and matrimonial matters, Molly has experience with ADA cases, where she advocated on behalf of individuals with disabilities regarding employment discrimination, access to governmental services, and international human rights violations. She can be reached at info@tullylegal.com or at (888)-529-4543.