Divorce in a Special Needs Family
The stakes are high. Understand a complicated process to make sure you truly act in your child’s best interest.
Divorce is a difficult and stressful experience in any circumstance, and especially so when children are involved. Getting divorced requires parents to address many issues that will have a profound impact on their children’s lives — custody, visitation, parental rights, child support. Resolving those issues is more complicated for parents of children with special needs, as the parties often have different views about their child’s abilities, limits and care.
Divorcing parents of children with special needs should do everything possible to put differences aside and draft a custody agreement that provides their child with all the supports he needs to thrive.
If that is not possible, an experienced family law attorney can help to secure an appropriate custody order from the court. Family courts make determinations based on the “best interest of the child” standard. For a court to do that, it must have all relevant information. Following are three of the most important areas of contention through which divorcing parents of kids with special needs should work with an eye to their child’s best interest.
1. Physical custody and visitation
Physical custody can be structured in several ways — from one parent having sole physical custody to both parents sharing physical custody for an equal amount of time.
A parent who has physical custody is responsible for the child’s daily care during designated times. Since children with disabilities often need a stable routine, a physical-custody schedule where parents alternate weekdays might not be appropriate. The custody order should carefully note any conditions — including dietary, medical and environmental restrictions — that former spouses need to observe during their custodial or visitation time.
In most states, unless a custody order or agreement says otherwise, a child will be eligible to attend public school in the district where she resides for a majority of the time. If, for example, your child lives with you most of the time, but you want your child to attend school in your ex-spouse’s school district, the custody agreement must say so.
2. Legal custody & decision-making
Legal custody refers to the right of each parent to make important decisions about the child’s upbringing, including educational, medical and religious decisions. When parents have joint legal custody, they have equal rights to participate in those decisions and must consult with one another. If you do not think your former spouse should have legal custody, let your attorney know.
If a child receives special education services, the custody order must clearly outline each parent’s role in the educational decision-making process. Special education laws like the Individuals with Disabilities Education Act (IDEA) and Section 504 generally do not distinguish between married and divorced parents. Unless the custody order grants one parent sole legal custody or revokes a parent’s educational decision-making rights, both parents will have the right to attend IEP meetings, the right to consent to services and educational placement, and the right to request mediation or a due process hearing if they do not agree with the district’s proposals.
Beware, however, that schools need consent from only one parent to proceed with a proposed action. This means that if one former spouse agrees to a recommended placement or new IEP but the other parent doesn’t agree, the only recourse is either taking the district to a hearing or the opposing parent to court.
It is therefore vital that parents with joint legal custody keep one another informed and resolve their disagreements before they attend an IEP meeting. It’s also important that a child’s school has a copy of the most recent custody order to eliminate confusion.
3. Child support & estate planning
Caring for a child’s special needs is expensive, yet state child support guidelines may not factor in all of the costs associated with this care. It is important for parents of children with special needs to obtain an accurate assessment of all expenses — medical care and medications, therapies, special dietary costs, childcare, educational services, tuition — so that a court can order a sufficient amount of support. Many children with special needs continue to need financial support and care beyond the age of 18. Divorcing or not, all parents of kids with special needs should look into establishing a special needs trust to ensure that their child is fully provided for in the future.
John Bogan is an attorney with Frankel & Kershenbaum, LCC in Bryn Mawr, PA. He represents childrenand families in matters including special education law, civil rights and juvenile justice. He is licensed to practice law in Pennsylvania and New Jersey.