Ask A Divorce Lawyer: If one spouse is legally blind, does that assure the other of getting sole custody?


If one spouse is legally blind and cannot take care of the children by themselves, will the other spouse pretty much be assured of getting sole custody of the children in the divorce?



In general, the standard to apply for any custody decision is the “best interests of the child” standard. State statutes and case law define this standard differently, but there are certain factors and/or themes that appear in the majority of states. For example, in Michigan, where I practice, family courts must consider the following factors:
 (a)  The love, affection, and other emotional ties existing between the parties involved and the child.
 (b)  The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
 (c)  The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
 (d)  The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
 (e) The permanence . . . of the existing or proposed home or homes.
 (f) The moral fitness of the parties involved.
 (g)  The mental and physical health of the parties involved.
 (h)  The home, school, and community record of the child.
 (i)  The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
 (j)  The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
 (k)  Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
 (l) Any other factor considered by the court to be relevant.

You will find the same or similar factors in most states.  
One common factor is physical health. A handicapped parent is not, ipso facto, unable to receive custody, but when the parent’s health affects his or her ability to parent, this factor may affect the final custody award. In other words, it is not true that the parent who can do the most push-ups will receive custody, but it is true that a parent who is blind and wholly unable to care for himself, let along his children, will probably not receive sole physical custody. If the parents are equal on all other factors, this may be the dispositive one.  
Health is but one of many factors. Courts must also analyze each parent’s proposed homes for the child, each parent’s willingness to foster and encourage a relationship between the child and the other parent, the child’s affection with each parent, any domestic violence, any physical, mental or moral impediments to parenting, and “any other factor” relevant to the particular family.
Therefore, your spouse’s blindness may play a part in the analysis, but so will your location at the time of the divorce, your relationship with your children, your relationship with your spouse, who was the primary caregiver, where the children have an established, familiar environment, where the children go to school, which parent is more likely to encourage the children’s current religious education, etc., etc.  
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Texas. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in custody cases do. Cordell & Cordell, P.C. does have offices in Dallas and Forth Worth, Texas.





Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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