One in five American households has a child with a disability or special health care need. While it’s never ideal for a family to break up, some family law matters can be complicated by the issues of caring for a child with a special needs disability, such as autism, down syndrome, traumatic brain injury, congenital disorder or any other disability that impairs the child’s cognitive or physical capabilities. A child’s disability may require unique decisions involving spousal support, child support, custody, visitation or medical care. For example, there are unique clinical needs of a disabled child, such as ABA therapy, physical therapy, speech & language services, behavioral plans, etc. The following information may be helpful for families with a special needs child.
In order to prevail on these issues, it is important to educate the judge as to the unique requirements of a special need’s child. The following list includes some fundamental information and factors to convey to the judge:
- Some disabilities, such as autism, often impact a child’s ability to learn, communicate and socially interact;
- With the right therapy and support and early intervention autistic children have made significant improvement; many of whom can become tax paying members of the community;
- Applied Behavioral Analysis (ABA) is currently one of the most effective interventions on behalf of autistic children; in addition to other therapies such as speech/language, physical therapy, occupational therapy, 1:1 aide support, etc.;
- A child often requires therapeutic services beyond those provided by a school district or a regional center and those services can be costly;
- Some school districts provide more or better services than another school district, which may impact where the custodial parent resides;
- The importance of family members reinforcing therapy in the home environment;
- Monitoring and responding to regression;
- Some circumstances require the custodial parent to give up a career or other employment opportunities in order to care for his/her special need’s child.
A pivotal starting point in a divorce matter is typically the issue of custody. Physical custody determines where the child primarily resides. The following are example key points in determining who should have primary custody; that is, which parent is in the best position to oversee a special needs child on a daily basis:
- Which parent took steps pro-actively to obtain a diagnosis?
- Has any parent been in a state of denial as to the diagnosis of the special need?
- Any delays in obtaining services? (Caused by whom?)
- Which parent has been reinforcing behavioral interventions?
- History of parent(s) involvement in IEP/IPP meetings.
- History of parent(s) involvement in meeting with therapists.
- History of parent(s) being an advocate on behalf of the child.
- Issues of child being able to handle change.
Another custody consideration is the child’s established routine. For a child with special needs, transitions may be physically or emotionally difficult or distressing. It could even make the child ill. Ask the court to contemplate how visitation can be arranged to best accommodate the child. One that same note, how will the child’s equipment or transportation be handled in exchanges? Will each parent have a vehicle with a wheelchair lift? Will the child have his or her medical equipment at each parent’s house, which can be quite costly? These issues must be decided when determining physical custody and visitation schedules.
Lastly, it is helpful to be as specific as possible in a custody and visitation order, especially when the child has particular dietary or routine needs. For example, a child with Attention Deficit Disorder may have improved attention and retention information in class if fed a well-balanced and healthy breakfast before school, and given their medication at a very exact time. One parent may be completely on board with this specific routine, but the other might not think it’s that important. It’s helpful to include in custody orders the child’s specific diet or routine so that the other parent is ordered to follow that routine while the child is in his or her care.
Child support is another important matter for the court to decide. California family law courts use standard formulas (referred to as guidelines) for determining the amount of child support. The most important factors are each party’s respective income and the amount of time each parent spends with the child. However, as to child support and in the best interest of the child, the court can be requested to consider the unique un-reimbursed costs of caring for a special need’s child. For example, the additional expenses of supplemental therapy or the multitude of services that can facilitate an special-needs child’s progression. Also, child support can continue beyond the age of 18 in some situations as to special needs adult children of the marriage.
Arguably the most important support factor is health care costs. Who will provide insurance for the child? Who will pay the costs of medical care that are not covered by insurance, such as extra therapy, equipment or medications? Who will take the child to appointments? Who will cover the cost of transportation? The state may offer appropriate and free services today, but with budget cuts and changes happening all the time, you cannot guarantee that those services will be there in the future for your child. Therefore, the child support agreement must consider all these specific needs of your child.
If you are considering divorce that requires unique considerations for your special needs child, make an appointment for a free 30-minute consultation with Cage & Miles, LLP today.