Special Needs Children and Divorce

on Jan 2, 2018 in Child Custody, Child Support, Divorce

Special Needs Children and Divorce

Attorneys and parents alike must give additional attention when approaching the issue of special needs children and divorce.  “Special needs” can mean different things to different people.  In the context of divorce proceedings, you, the parent, decide whether your child’s situation merits the title “special needs.”  Typically, however, children with special needs require care and attention above and beyond the average child.  Whether your child requires a wheelchair, has a mental illness, is developmentally delayed, or is terminally ill, if your child has special needs, your divorce requires special attention and consideration.

Parenting Time, Special Needs Children and Divorce

Often, when parents divorce, custody is established as every other week, and alternating weekends.  Other parents use a 2-5-5-2 schedule.  However, children with disabilities, particularly those with disabilities which require structure and predictability, often do not flourish under such an arrangement.  Consequently, extra care and consideration must be given to transition between each parent’s home, as well as parenting time schedules.

Different families do things differently.  Some parents agree to keep the child in a single home, while the parents alternate parenting time, maintaining residences elsewhere.  Other families agree the child will spend the school year with one parent, and the summers with the other.  The goal is to avoid unnecessary stress and trauma for the child.  Predictability and communication can provide some stability, even for a child changing homes every week or so.

Education, Special Needs Children and Divorce

When children qualify for special education, the school system must provide individualized services to the child.  Additionally, schools provide an Individualized Education Program (IEP) for each child with disabilities, provided they meet the criteria outlined in the Individuals with Disabilities Education Improvement Act of 2004.  Both school professionals and parents provide input creating an IEP.  If you have an IEP in place for your special needs child, be certain to inform the school professionals about your pending divorce.

Because IEPs and specialized education will be ongoing, consider whether one or both parents will have input on future IEP plans.  If you both plan on having input, consider now how you will approach situations where you don’t agree on the best course of action.  Having a resolution plan in place ahead of time simplifies resolving issues later.

Medical Care, Special Needs Children and Divorce

Children with special needs frequently require ongoing medical care.  Parents must decide whether one or both parents will be responsible for making medical decisions.  Additionally, depending on the nature and extent of the child’s needs, parents must decide whether one or both parents will be involved in taking the child to doctor’s visits, treatments, therapies, etc.  Whether one or both parents are involved in the child’s medical care, parents should take the time considering how the other parent will be kept up to date on the child’s progress, whether all decisions may be made by one parent, or whether instead there are some day to day decisions one parent can make, while reserving other, more serious decisions for both parents to make.

Alimony, Child Support, Special Needs Children and Divorce

When evaluating the appropriateness of alimony, as well as child support, the parties should consider how this may impact any needs-based government assistance.  Particularly in light of the 2017 new tax plan, special consideration must be given to the nature and types of support agreed to.  Parents might consider in-kind alimony or child support to preserve means-tested government benefit programs, such as Medicaid and SSI.

Special needs children may require more child support than typically contemplated by the child support statutes.  In Maryland, courts can consider the special facts and circumstances of a given family, and decide to award more child support than the guidelines, where appropriate.  Children with special needs may have added expenses the court can consider, including:

  • Therapy;
  • Durable medical equipment;
  • Medication;
  • Dietary needs, including supplements;
  • Modified living situations, such as a ramp;
  • Cars which meet specifications accommodating the child and their equipment;
  • Respite care;
  • Surgery;
  • Specialized medical professionals;
  • Medical insurance; and
  • Life insurance.

Estate Planning, Special Needs Children and Divorce

Particularly for special needs children who require ongoing care past the age of 18, families should give some consideration to estate planning.  This may include both parents carrying life insurance policies, with the child’s special needs trust as the beneficiary.  Parents should consider whether and who should carry long-term care insurance for the child.  Additionally, both parents should have wills drawn up, detailing their wishes in the event of death.  Finally, families should rely on an attorney familiar with special needs trusts for setting up the trust.  This is not the time to “do it yourself.”

When Parents Don’t Agree on the Best Interests of the Child

Sometimes, parents don’t agree on the proper approach to take with a child with special needs.  Sometimes, this is because one parent doesn’t acknowledge the child has special needs.  Other times, this is because the parents disagree on the amount of accommodation necessary for their special needs child.  Still other times, there may be more than one appropriate treatment path.  Different philosophies necessarily result in very different approaches.  These disagreements can become a source of conflict during divorce proceedings.

Thankfully, divorcing couples don’t go through the process alone.  Divorce attorneys have experience dealing with special needs children and divorce.  Often times, while parents don’t agree on the best approach, they do agree a united front is necessary.  Experienced divorce attorneys consider engaging qualified professionals neutral to both parties.  These experts provide guidance during the decision making process.

If You have a Special Needs Child

If you have a child with special needs, and are considering divorce, contact the Law Office of Fait & DiLima.  We provide divorce and family law services, and have for over 20 years.  Our experienced family law attorneys can walk you through the process, taking into consideration your family’s special needs.

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