Too often, the demands of caring for a special-needs child create stressors on a marriage that lead a couple to divorce. The divorce rate among parents of special needs children is above average – by some estimates, as high as 80%. When crafting a divorce agreement (or modifying one), unique issues must be anticipated and addressed for a special-needs child. An informed approach can make all the difference in securing the child’s future, and in allowing smooth, successful co-parenting going forward.
ADDRESSING SPECIAL NEEDS IN A DIVORCE
As with every divorce or custody case involving a child, a parenting plan will be necessary for a child with special needs. This will include provisions for how the parents make decisions for the child, a visitation schedule, and child support and medical support. We have found that a typical parenting plan may be inadequate to address issues that arise with special-needs children. Some issues we see in these cases are:
- Shared Parenting Time May Be Unworkable. Some children may have difficulty transitioning between two homes due to physical or psychological limitations. Parents may also disagree about what is best for a child on a day-to-day basis, such as a set routine. This can make a Standard Possession Order very difficult for a child and the child’s parents.
- Parents May Disagree About Treatment or Diagnoses. It is not unusual with special-needs children that the parents have disagreements over the child’s treatment or even the child’s diagnosis. This creates unique challenges for crafting a parenting plan that ensures consistency in treatment between the homes, including educational interventions, medical treatment, and the use of specialized dietary plans.
- Decision-Making. With a special-needs child, the parents frequently need to make significant decisions about the child’s education, medical treatment, and psychological or psychiatric treatment. It is especially important that there is a clear and detailed structure for the parents to make these decisions to ensure consistency of care for the child.
PARENTING PLANS FOR SPECIAL-NEEDS DIVORCE CASES
In a typical divorce decree, parents may not need to specify how every decision relating to the children will be resolved. For example, a divorce decree may not need to name a specific day care or doctor that the children will see. However, in a case involving children with special needs, more details may be appropriate to address anticipated issues in the future. These special provisions can include:
- Provisions for the payment for treatments not covered by insurance;
- Implementing diet and medication requirements in both homes;
- Provisions for working with schools to implement plans for the educational needs of the child;
- Provisions for care outside of either parent’s home, including associated costs; and
- Provisions addressing the impact on the parents’ ability to work outside of the home.
MEETING THE CHILD’S NEEDS INTO ADULTHOOD
Once a disabled child reaches age eighteen, the family court may still make orders for child support into adulthood. In making these decisions, the court may consider whether the child can live independently from his or her parents, the financial resources available to each parent, and whether the child’s needs prevent one or both parents from working. In such cases, the divorce court may provide for child support well beyond the child’s eighteenth birthday.
Adult children typically become uninsurable as dependents through private health insurance, so the child will likely need to depend on Medicare for medical expenses. Payments of child support directly to a parent may jeopardize the child’s entitlement to Medicare and other benefits. This issue can be addressed with the creation of a special needs trust for the child, which an estate-planning lawyer can draft. It is important, however, to select a divorce or custody attorney with experience in these issues, so that nothing in the final order negatively impacts the disabled child’s entitlement to government benefits in the future.
OUR UNIQUE EXPERIENCE HERE AT NMSB
Our firm’s lawyers have represented parents of special-needs children. Keith Maples – the divorced father of a son with autism – has focused on this practice area, and he has unique insights into the challenges and issues involved. Our firm’s team approach to casework allows everyone to benefit from Keith’s insights and expertise. Keith regularly speaks and writes on this topic and supports other lawyers throughout Texas on these cases. Keith has provided testimony as an expert witness in cases involving special needs issues. Additionally, Keith regularly serves as a mediator in cases involving these issues.
