Divorce and Special Needs Children

There are few challenges more difficult than going through divorce and having a child with special needs. For parents of children with special needs, the decision to separate and divorce has an extra set of consideration. As a parent of a child with special needs you will realize immediately during this process the burden of future planning and ensuring the well-being of your children will fall on your shoulders.

How is custody determined?

There are two ways which custody can be established: (1) Through an agreement between the parties, or (2) the parties can go to court and have the issues decided by a Judge.

Your family situation will guide the decisions for dividing up time with your children and determine what is in the best interest of the children. The rule in Maryland is that the best interest of the child is the guiding factor when determining and establishing custody. The two most frequently cited cases are Montgomery County v. Sanders and Taylor v. Taylor.A custody agreement should spell out essential information and instruction for the parties regarding their children. If you proceed with a private custody agreement, a good starting point is to determine where you and your spouse agree concerning your child's abilities and challenges.In determining access schedule, there are several ways that parents can divide the time that they share with their children. Parents can alternate nights; however, some children may have issues with transitions. Parents can also alternate weeks, but this makes the transition back to the other parent more difficult at the end of the week. Alternatively, parents can alternate weekends, one parent having weekday custody. Or, parents can have a fixed scheduled where Dad or Mom has the kids on certain days.

In structuring a divorce and custody agreement, special consideration must be given to the parenting agreement, estate planning, and the child's transition to adulthood. Legislation and case law are constantly evolving in this area as family law attorneys are dealing with more cases concerning children with special needs.

When the parents cannot agree on a custody schedule, a court may make the decision for the parents. During litigation regarding custody, an unbiased party may be called in to evaluate the custody situation to determine what is in the best interest of your children.

Who makes decisions about our child's medical care, education, and other important issues?

Decisions about medical care, education, and other life decisions relate to "legal custody," Legal custody is different from "physical custody," which relates to where the child lives and spends time.

If parents disagree on a decision, such as where a child should go to school or the necessity of a medical procedure, they may need to resort to the courts to resolve it. Or, this issue can be resolved through a Custody Agreement to avoid the necessity for a Court to make a determination.

What happens if one of the parents moves to another school district?

In general, the child is enrolled in the school district of the primary residential custodial parent. Note, however, the district in which your child goes to school is not responsible for providing transportation to and from the home of the parent who lives out of district. Unless, there is an agreement to provide transportation services through the child's Individualized Education Program (IEP).

How will my child with special needs, who is so averse to change, adapt?

This is one of the biggest worries for parents going through separation and divorce. Many children with special needs have extreme difficulties with change of routine.

Ways to ease the transition:

Work with your child to expect and deal with the scheduled transitions in your custody schedule. You can provide a large calendar at both homes, so your child has a visual reminder of their schedule. Include your child is regular scheduled activities on the calendar and let the child know which parent will be taking the child to their scheduled activities. Make sure you talk about scheduled events ahead of time and remind your child on the day of a custody switch.Depending on your child's age, educational services, and cognitive level, your child may benefit from having all parties working together to ease transitions. In addition, your child may benefit from counseling to help the child adjust with the separation and divorce. Your child's may have a private psychologist or other counselor to help. It may also be helpful to discuss matters with the child's school and/or Individualized Education Program team to take a collaborative effort to curb any potential maladaptive behaviors or distress the child experiences as a result of the separation and divorce.

Will the other parent follow through on routines, schedules, behavior plans, therapy, etc.?

Before any formal custody agreement is drafted and executed, there is no guarantee that the other parent will follow through on existing routines or therapies, It may help parties to seek family counseling, or individual therapy, if your former spouse is unwilling to join you to learn how best to work with your ex.

The establishment of a custody agreement can mitigate disagreements and ensure continuity and consistency for your children. The establishment of a partial custody agreement, even if only a few issues, can help parents ease any disagreements and ensure that both parents are on the same page.

How will the divorce affect our ability to pay for the services my child needs?

Child support is designed to help make sure that the children have what they need regardless of what house they are at when they need it. In the State of Maryland, a parent may be required to pay child support to the other parent until the child is 18 years old or finishes high school. In the District of Columbia, a parent may be required to pay child support to the other parent until the child is 21 or finishes high school.

In some areas, child support may be extended for a longer period of time if the child has a substantial disability. Any support paid for a child over the age of 18, can affect your child's ability to receive governmental benefits. To avoid losing eligibility because of support paid over the age of 18, a special needs trust can be established and deposit the funds previously designed as child support into the Special Needs Trust.

However, child support guidelines do not always address the extra expenses of a child with special needs, As parents of special needs, you are well aware of the increased need and costs for specialty medical care, services, and equipment; for nonprescription treatments, vitamins and nutritional needs; for paid respite care for the custodial parent. Uncertainty about the nature and cost of future care makes it difficult to estimate disability-related expenses in a divorce agreement.