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Family Law Blog

Divorce ~ Paying Attention to Special Needs of Children

SWLD Staff

In any divorce and family law proceeding involving dependent children, one of the most important concerns is custody and parenting time. When a child has special needs, the determination of an appropriate custody and parenting time plan requires special planning and considerations to allocate time, assign parental responsibilities and decision-making, and understand expenses. This may be the case even when the special needs child is 18 years of age or older. Depending on the child’s level of physical and psychological functioning, traditional custody plans may not meet the family’s needs. Not only are parent-child relationships affected by divorce and separation – sibling relationships should also be considered in order to balance the needs of all the children.

Custody and parenting plans should address the additional costs that may be associated with raising a special needs child. On-going expenses may be included in basic child support, while variable expenses may be allocated between the parents and payable as they are incurred. Examples of additional potential costs to be considered include necessary physical, occupational or other therapies, medical equipment, medication, nutritional supplements, dietary restrictions, tutoring, and more intensive or specialized supervision than would otherwise be needed.

For some families, one parent may be primarily responsible for the special needs child, thereby affecting his or her ability to work full-time or pursue a career. When that is the case, and these responsibilities significantly limit a parent’s ability to earn income, this is a factor that will be considered in determining alimony.

If you have a child with special needs, your divorce or separation agreement will cover many areas of your child life now and in planning for the future. This often warrants a cooperative, multi-disciplinary approach to the divorce process. Your child’s education, the potential need for a guardianship, eligibility for special services as well as government benefits, and criteria for emancipation are just some of the factors that you will consider.

Bringing other professionals into the divorce process can help provide comprehensive integrated planning not only for the child, but for the entire family. Education lawyers or special education experts can be brought in as consultants. When parents are figuring out where they will live, and the school district where the children will go to school, they will want to investigate and consider the adequacy of services provided in the towns they are considering. Depending on the child’s level and type of disability, it may also be advisable to consult with a trusts and estates attorney about establishing a special needs trust. Special needs trusts must be drafted carefully to meet certain requirements that will not affect the child’s eligibility for important governmental benefits.

A multi-disciplinary approach is available to parents going through divorce, whether in litigation, mediation or the collaborative family law process. To the extent parents can work together, and bring in the appropriate experts, the divorce process can be coordinated to help insure comprehensive planning for both the special needs child and the entire family.

By Amy Wechsler, Esq.

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