By Lili A. Vasileff

There are few challenges more difficult than going through divorce and having a child with special needs. As a divorced, single parent of a beautiful daughter with special needs, I can tell you that you realize immediately that the burden of future planning, well-being and protection fall squarely on your shoulders as a custodial parent. It is the daily living and ordinary moments that test your self -reliance and capacity to parent alone.

When there is a child with special needs involved in a divorce, issues of child custody, visitation, and support and property division are significantly more complex to negotiate. As part of your divorce, make sure you consider globally what your child’s special needs are and have your attorney walk you through a “day in the life” of caring for your child.

Child support charts do not address the extra expenses of a child with special needs. There is increased need for specialty medical care, services, and equipment; for non-prescription 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.

From a legal perspective, the goal is to identify and understand how to determine the child’s best interests. Here are some examples:

  • With whom will the child live?
  • How much contact (previously termed “access” or, in some jurisdictions, “visitation“) will the parents, legal guardian or other parties be allowed (or required) to have?
  • To whom and by whom will child support be paid and in what amount?

A parenting plan should spell out essential information and instructions. A good starting point is to explore how much you and your spouse agree concerning your child’s disabilities and abilities.

In structuring a divorce agreement, special care must be given to parenting arrangements, estate planning and the child’s transition to adulthood. Legislation and case law are evolving in this area as more family lawyers deal with a burgeoning number of cases involving children with special needs.

In the divorce agreement, care must be given to unique issues that arise in the child’s transition into adulthood, such as guardianship, eligibility for quasi- government or private agency benefits, employment, recreation and social skills, independent living, or custodial care. Typically with developing children, child support and custody end at age of majority or when they graduate from college. Divorcing parents of children with special needs who have severe impairments face the reality of life-long care-giving and, perhaps, co-parenting.

Alimony (spousal maintenance) and child support payments need to consider the child’s eligibility for public benefits as both a minor and adult. It is essential that your family law attorney work with a special needs attorney and an experienced financial adviser to eliminate risk of forfeiting the child’s entitlements. Divorce attorneys do not always know how child support payments made directly to the custodial parent interact (negatively) with “means tested” government benefit programs like SSI and Medicaid. In-kind alimony and/or child support should be considered in order to preserve government benefits. It is critical to address these issues during the divorce process.

Managing the care of a child with special needs is often a full- time job and the effect on the custodial parent’s income should be considered when establishing spousal maintenance. Since caring for your child with special needs may extend well beyond age of majority, you need to tailor your divorce agreement for the long-term. Use appropriate special needs trusts, in coordination with public benefits and in contemplation of gifting plans and long-term care insurance. Effectively channel support obligations and parenting plans in the divorce settlement to provide for more quality of life expenditures for the child.

Make the system work better for you and your family by taking a practical look at what special needs exist and how they are appropriately addressed in the arena of divorce.

Special needs child custody

When it comes to child custody, things can get complicated when a special needs child is involved. Legal custody, which refers to the right to make important decisions for the child, is just as important as physical custody, which refers to where the child will live. Special accommodations may need to be made to ensure the child’s safety and well-being. It’s important to consult a knowledgeable child custody lawyer who can help navigate the intricacies of special needs child custody. In addition to legal and physical custody, child support guidelines may also need to be adjusted to account for the child’s unique needs. Overall, it’s important to prioritize the child’s best interests and work with all parties involved to create a successful arrangement.

Are Special needs Child Custody Requirements Different?

When it comes to special needs child custody requirements, it is important to understand that the custody arrangement and child support guidelines may differ from those of a typical custody case. This is because children with special needs often require more specialized care and attention, which may affect the parenting plan and visitation schedule. In addition, the non-custodial parent may need to provide additional financial support to cover the costs of any necessary therapy or medical treatments. It’s important to work with an experienced family law attorney who can help you navigate these complex issues and ensure that the best interests of the child are protected.

What the Child’s Best Interest Standard?

The child’s best interest standard is a concept that is at the forefront of every family law case involving minor children. This standard requires that judges make rulings based on what is in the best interest of the child. Several factors that come into play when examining the child’s best interest standard include the child’s age, the relationship the child has with each parent, the mental and physical health of the parents, and whether or not a parent has a history of domestic abuse. When it comes to making decisions about a visitation schedule or major decisions, like education and medical care, the court must consider what will be best for the child in the long run. This standard is especially crucial when dealing with disabled children. Their unique needs must be taken into account when deciding on everything from visitation schedules to major decisions. In any child custody case, it’s essential to have a qualified child custody attorney on your side to advocate for the child’s best interest.

Transitioning your special needs child into a visitation and possession plan

Transitioning your special needs child into a visitation and possession plan can be a complex and emotional process. As a parent, you want to ensure that your child’s best interests are always prioritized. Consulting with a child custody attorney can provide you with the guidance and support you need to make informed decisions regarding your child’s physical custody and visitation. It’s especially important to consider your child’s unique needs and abilities when determining a visitation schedule with the noncustodial parent. By approaching this process with care and attention, you can help create a positive and supportive environment for your child to thrive in.  Remember that the goal is always to promote your child’s well-being and provide them with stability, safety, and love.

How will you and your co-parent divide conservatorships rights between the two of you?

Dividing conservatorship rights between co-parents can be a complex process, but it is important to establish a custody arrangement that works best for everyone involved, especially the children. Seeking the assistance of a child custody lawyer can help provide guidance on the legal aspects of conservatorship and ensure that all necessary steps are taken to establish a fair and just arrangement. Additionally, referring to child support guidelines can help ensure that all financial aspects of the arrangement are clearly defined and appropriately allocated. Remember, if one parent is designated as a non-custodial parent, they still have certain rights and responsibilities that should be agreed upon and specified in the custody arrangement. It is important to approach dividing conservatorship rights with a cooperative and child-focused mindset to promote healthy relationships for all involved.

The Custody Schedule

The custody schedule is an essential part of any divorce agreement. It outlines when each parent will have physical custody of the minor child or children. However, the schedule does not dictate who makes major decisions for the children’s welfare, such as medical, educational, and religious choices. It is important to take the child’s needs into account when establishing the custody schedule, especially in cases where a disabled child is involved. In situations where a disabled child is present, the child custody attorney must take extra care to ensure that both parents are able to provide the necessary care and support for the child. Overall, the custody schedule plays a vital role in determining how the parents will divide their parenting responsibilities and ensure that the children’s best interests are at the forefront of the decision-making process.

Lili A. Vasileff, CFP®, CDFA™ is President of both the international Association of Divorce Financial Planners and Divorce and Money Matters, LLC, a private divorce financial planning practice. She is the co-author of The Ultimate Divorce Organizer: The Complete Legal , Financial and Personal Guide to Divorce.

About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.

 Requirements for Reproducing this Article: The above article may be reprinted only if it appears unmodified, including both the author description above the title and the “About this Article” paragraph immediately following the article, accompanied by the following statement: “Reprinted with permission of the Special Needs Alliance –” The article may not be reproduced online. Instead, references to it should link to it on the SNA website.