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What if I am in better health than my spouse? How does that effect custody decisions?

If your health is only marginally better than your spouse’s, such as you exercise daily while he or she is on the couch, then a judge will likely ignore this. If, however, your health is significantly better than your spouse’s, who has a chronic or serious disease, then a judge may consider health in deciding custody.

This does not mean, however, that a disabled parent is automatically out of the running to become the custodial parent. The disability will be one of the factors considered by the judge when awarding custody. If the disabled parent can meet the child(ren)s needs and provide a good, stable, home environment for the child(ren), the disability may not be of any relevance.

If, on the other hand, one parent suffers from a mental disability that would make caring for the child difficult or next to impossible, of course this would be become a major factor. If the mental disability can be successfully treated by drugs or other methods and would not pose difficulty or danger when attending to the child, it may not be as relevant. Be aware that some judges in some states still have a prejudice against mental illness when deciding child custody and believe that any mental illness renders a parent unfit. Again, your lawyer will be able to advise you on this issue. If you are the parent with the mental disability, be prepared to demonstrate that your disability is being treated and/or poses no difficulty or danger when attending to the needs of your child(ren).

Some judges still are leery of awarding custody and in some cases have denied visitation to a parent who is HIV positive or has AIDS. This type of decision is more often based on ignorance and fear than on sound medical knowledge. It is unlikely that status as an HIV or AIDS patient would endanger the child in any way since HIV can only be contracted through an exchange of bodily fluids, not a likely scenario in most households. If the afflicted parent is capable of attending to the needs of the child, HIV or AIDS status should have no bearing on child custody.