Going Through a Divorce When You Have a Child with Special Needs

specialDivorce is a difficult and emotion process for any spouse or parent. But when the spouse is also a parent of a child with special needs, the divorce can be even more emotional and difficult.

In dealing with any divorce that involves children, issues such as child custody, parenting time, and child support must be addressed. However, when there is a child with special needs, this can be even more complex to handle.

The legal standard for child custody and parenting time is the “best interests of the child”. This is an intentionally vague legal standard, because there are so many different factors that apply to this standard, and they are all unique to each family. When applying this standard to a child with special needs, some of the things that need to be considered are: 1) the child’s diagnosis; 2) the child’s ongoing medical needs; 3) where the child requires extensive hospitalization or repeating medical appointments; 4) what medications does the child require, and do they have to be administered in a special way; and 5) is the child enrolled in any special education program as a result of his/her needs.

All of these factors are very important in deciding custody, including legal custody, which is the part of custody where parents decide the “major life decisions” for a child, such as education, medical care, and religion. Typically parents share legal custody for children. However, in situations where parents cannot effectively communicate with one another, or where there are repeated disagreements about a child’s medical care and/or schooling, there may have to be an adjustment to the shared legal custody, such as nominating a parent who is responsible for making the medical decisions, or such as engaging a Parent Coordinate to help resolve such disputes.

With physical custody, what must considered is what medical protocols does the child require. If there is a medical reason for a child to reside primarily with a certain parent (e.g. the child is bed ridden due to his/her medical condition, or the medical providers are closer to one parent’s home), then that is an important factor to consider. Another important factor is that public funding for programs such as IEP for special education, are dependent upon the municipality in which the child physically resides. As such, if there are better resources available to one parent for IEP and special education programs, then that parent may be the better primary physical custodian for the child’s care.

For parenting time, it is important to consider if a child requires consistency as part of their treatment. If that is the case, then the parenting time cannot fluctuate too much, and should be as consistent and as regular as possible. Also, if there is more than one child in the family, parents may want to work out some parenting time for all of the children, and then specially designated parenting time with the child with special needs, and then specially designated parenting time for the other child(ren). Another factor to consider is giving each parent some respite from caring for the child with special needs. Although all parents love their children, caring for children with special needs can be especially stressful, and giving each parent some respite time is just as important for the children as it is for the parents.

Another factor that has to be considered is child support. The Child Support Guidelines create a legal presumption for how much a non-custodial parent has to pay in child support. However, there are exceptions where there can be deviations in child support, and this includes situations where there is a child with special needs. In these circumstances, the child support order can be increased or decreased from the presumptive guidelines amount, as the case may be, depending on the extent of the cost of medical care and educational needs of the child, and each parent’s ability to pay for this care. Furthermore, recent appellate decisions have stated that parents may be legally required to support their children with special needs past the age of 23 (the latest age for emancipation).

Dealing with child custody, parenting time, and child support in any divorce is always particularly emotional for parents. However, when there is a child with special needs in the family, this can be an extremely stressful process. It often requires creativity of the parents and their attorneys to craft an agreement that is tailored to the family and the child with special needs. In such cases, it is very important to work to reach an agreement outside of court, as it is the parents who best understand what each child needs. If parents are unable to agree, then the court is tasked with deciding what is best for the family, which is not necessarily the best solution when a child with special needs is involved.

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