Legal Question in Family Law in South Carolina

child custody dispute/father mentally & physically disabled

Hi

My husband and I have been sep. for almost two years. One year ago he got into an accident that has left him physically dependent and mentally disabled. His mother has full power of attorney. He is not expected to fully recover and will always need to be supervised, etc. I am now asking for divorce and his mother is fighting (''on the father's behalf'') for joint legal custody. My stand on this is: The father can't make legal or medical decisions for himself, how can he do it for his son? She does not see it that way and thinks she should have joint legal custody with me in the father's place. I feel it is enough that she is supervisor for the baby's visits and sharing standard visitation with my ex-husband. This has been going on three months now, and a guardian ad litem is being requested. What is the likleyhood of the court granting her request? I don't feel I should have to consult with my ex-husband's mother to make decisions for our child. I am his mother, the father is disabled and there are no replacements. Does that seem overly ambitious?

Thanks for your help, I know this is probably a strange case.


Asked on 2/26/07, 5:47 pm

1 Answer from Attorneys
Ben Stevens The Stevens Firm, P.A. Family Law Center

Re: child custody dispute/father mentally & physically disabled

The Court generally disfavors joint custody in "normal" situations. In a situation like this, it would not make sense to have a non-parent exercising a parent's decision making ability on his behalf. In fact, there is a good argument to be made that if she were allowed to do so, it would be unconstitutional.

As for a guardian ad litem being appointed, I am not surprised that the Court would take that step in order to obtain necessary information to enable it to determine what truly is in the child's best interest. That, in and of itself, is not a bad thing and can work to your benefit.

These are complex issues, and it is important that they be handled correctly. Therefore, it is important that you consult an experienced family law attorney to find out what options are available to you based on the facts of your particular case.

If you need more information, you can visit my family law blog (www.SCFamilyLaw.com) or our website (www.StevensFirm.com). I wish you the best of luck.

Ben Stevens

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Answered on 2/28/07, 9:30 pm


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