5 Ways To Advocate For A Child With Special Needs During A Divorce

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BY MINDY STANNARD

Going through a divorce can be a stressful and trying time for any parent. Parents of a child with disabilities or special needs often face additional challenges when going through a divorce. Even an amicable divorce can include many complicated issues when the parents have a child with special needs. Issues relating to decision-making, a parenting schedule, child support, alimony and division of debts and assets are especially important in cases where one or more of the parents’ children has special needs.

Parents of a special needs child may face difficult challenges in dealing with the other parent and in working to make sure the child receives all the services the child needs in order to thrive. In some cases, one of the reasons for the parents’ divorce may be that they do not agree on how a child with special needs should be cared for and how major decisions should be made for that child. Parents may not agree on what therapies are needed or where the child should go to school. Some parents disagree on whether their child needs a special diet and/or what foods should be avoided. A parent of a child with special needs may want to consult with an experienced family law attorney in the state where the divorce is occurring in order to obtain advice on how to protect and plan for the child with special needs. Each child is unique, and it is important that the parent of a child with special needs (and that parent’s attorney) work to protect the parent’s ability to take care of the current and anticipated needs of the child.

1. WHICH PARENT SHOULD MAKE MAJOR DECISIONS FOR THE CHILD WITH SPECIAL NEEDS?

When consulting with an attorney about divorce, a parent should find out how the law in the state where the divorce will occur addresses decision-making for the child with special needs. In some states, one parent will be designated as the one authorized to make major decisions for a child if the parents do not both agree to make joint decisions. In other states, the law may require that (in most cases) parents jointly make major decisions for the child.

It is not uncommon for the parents of a child with special needs to disagree about what therapists that child should see, what school they should attend, what medical providers should treat them; whether they should receive  treatment from an alternative medicine practitioner, whether they should follow a special diet, and what treatments they should undergo.

If parents going through a divorce cannot jointly make major decisions for the child with disabilities, then a parent may consider consulting with a lawyer to help determine if they can obtain a court order through the divorce proceeding allowing them to make the major medical, therapeutic, religious and educational decisions for the child. A parent may also want to consider suggesting a mediator to see if they might assist the parents in reaching an agreement on how major decisions will be made for the child.

2. DETERMINE WHAT PARENTING SCHEDULE IS IN THE BEST INTERESTS OF THE CHILD WITH SPECIAL NEEDS.

During a divorce proceeding, a parenting schedule can be created to define when each parent will spend time with the child. A parenting schedule is often detailed and includes provisions relating to the regular school year, summer and holiday schedules. The schedule can also contain specifics on how and when the parents will pick up and drop off the child for parenting time exchanges, as well as any special instructions relating to each parent’s responsibilities for the child.

Since children with special needs may have complicated schedules with frequent medical and/or therapy appointments, sessions with tutors and special extracurricular activities, some function better when they are in one household the majority of the time.

Parents who communicate well and agree on medical and therapeutic care for a child with special needs may have minimal problems with a parenting time schedule and with keeping a consistent routine for a child with special needs in both households. On the other hand, parents who do not communicate well and do not agree on the care needed for a child with special needs likely want to ensure their parenting schedule is detailed and focused on addressing the specific needs of their child.

3. ADDRESS HOW ANY EXTRAORDINARY EXPENSES FOR THE CHILD WITH SPECIAL NEEDS WILL BE PAID.

Each state has a process for calculating an appropriate amount of child support in divorce proceedings. How child support is calculated may take into consideration such factors as each parent’s monthly income, health insurance expenses (for the parents and/or for the child), work-related day care costs, a child’s age, how many children each parent has and/or the time that each parent has with the child pursuant to the parenting time schedule ordered in the case.

Parents of a child with special needs should not assume that the court will automatically take into account the extra expenses they may incur for that child’s care. Because of this, the parent should consider compiling a detailed list of expenses that are incurred for the child for therapy, education, tutoring, daycare, uninsured medical expenses, special diets, special hygiene products and other necessary items (wheelchairs, etc.). The parent can discuss these extraordinary expenses with an attorney, and determine how they should be paid and allocated between the parents during and after the conclusion of their divorce.

When discussing child support with an attorney, the parent of a child with special needs may also want to discuss how long child support will be ordered for the child. In some states, the parent’s child support obligation ends when the child turns 18 years old. Other states provide for additional child support after the child turns 18 if they attend college. In some states, an adult child who is disabled (and cannot earn an income) may be entitled to receive child support.

If a child with disabilities will need ongoing care as an adult, it important for that child’s parents to consult with an attorney or other professionals who specialize in working with parents to make a long-term plan regarding future financial support for that child. A parent of a child with special needs should be informed on how support payments and/or money deposited into a trust account or savings account may impact that child’s future ability to receive state and federal assistance from such programs such as Medicaid and Social Security.

4. DETERMINE IF THE PARENT WHO IS THE  PRIMARY CAREGIVER FOR THE CHILD WITH SPECIAL NEEDS IS ENTITLED TO RECEIVE ALIMONY TO ALLOW THAT PARENT TO CARE FOR THE CHILD.

Laws regarding how alimony is calculated and how long it may be paid to a parent after a divorce differ greatly from state to state. If a parent believes that he or she may be entitled to alimony or may need to pay the other parent alimony, it is important to consult with an attorney and to find out the laws regarding alimony in your state.

A parent’s ability to work may be limited if that parent is providing care for a child with special needs. In some cases, a parent’s ability to earn an income may be impaired because that parent has not been working outside of the home for months or years because of care needed by a child with special needs.

In some states, the Court may consider a parent’s need to provide care to a child with special needs as a basis for awarding a greater amount of alimony or as a basis for awarding alimony for an extended period of time.

5. DETERMINE IF THE NEEDS OF THE CHILD SHOULD IMPACT THE DIVISION OF THE PARENTS’ MARITAL DEBTS AND ASSETS.

Because a parent’s ability to earn income may be significantly impacted due to caretaking responsibilities for a child with special needs, that parent may have a basis for arguing that it is fair for the Court to award that parent a larger share of the parent’s assets or that the other parent should pay more of the debt that was acquired by the parents during their marriage. A disproportionate division of debts and assets in a divorce may be fair due to the likelihood that the parent providing care for the child the majority of the time may have a limited ability to earn income or accrue retirement benefits after the divorce. There may also be a valid basis for arguing that it is in the best interest of the child with special needs for the child’s primary caregiver to keep the marital home, in order to provide consistency and stability for the child.

By working with professionals and attorneys who understand or who will educate themselves on the special circumstances and challenges faced by a parent with special needs, a parent of a child with special needs can more easily work to navigate the additional challenges of going through a divorce and attain the best outcome to help care for a child with special needs now, and in the future. •

ABOUT THE AUTHOR:
Mindy Stannard is a family law attorney at the at the law firm of McKinley Irvin in Portland, Oregon. Mindy represents people dealing with divorce, custody, paternity, child support and modification proceedings. Mindy can be reached at 503-953-1032 or at http://mckinleyirvin-oregon.com