Divorce and custody cases come in all forms and variations. I have been representing clients who have experienced these family transitions for over 25 years, and one thing has remained the same: Each case deserves its own special analysis in order to find the right solution for the respective parents and children concerned. This fact is never more true than in cases involving children (or parents) with special needs.
While the divorce rate hovers around 50% for most marriages, when a child with special needs is in the picture, the rate rises to between 70-90%, depending on which study you refer to. That is incredibly high and certainly an indication of how much stress a child with special needs can bring into even the strongest of marriages. But just like during marriage, when this child and these parents need a little extra time and attention to get things right, if you divorce these people, it is time to take off your kid gloves to make sure everything is sorted out well, and each base is properly covered.
What makes these cases so different?
Cases with children with special needs require certain information that can normally only be obtained from outside experts with a special understanding of what it takes to care for the child for a lifetime. You see, most children with special needs remain dependent on their parents in some way for their entire lives.
Typically, family courts handle custody matters until the child reaches the age of majority (18 years of age in most states). Because of this, your attorney will need to ask various questions and employ strategies to gather information that is not always necessary for a “normal” divorce or child custody. If these steps are omitted or forgotten, the end result can have a negative impact on the child and parent.
Definition of special needs
It is important to start defining special needs from the beginning. The following questions must be answered before discussions of agreements, consent forms, or parenting plans begin (please note that some of these questions are difficult to answer and require difficult conversations, but are essential for the success of the intervention):
- What is the official diagnosis? Who did it?
- Do both parents agree on the diagnosis?
- Has a treatment plan been drawn up? Do both parents agree to the treatment plan?
- If the child is at school, has the school been notified?
- Is an IEP already in place for the child, and if not, is it planned?
- Is the child’s condition “curable”, “treatable” or “terminal”?
- Do these special needs influence the daily routine of the child and thus the daily or weekly routine of the parents?
- Do the special needs negatively affect the way the child deals with transitions from one environment to another?
- Do these special needs need financial assistance beyond the age of 18, and if so, what pre-separation measures were in place to meet those needs (ie estate plans, trusts, etc.)? How will these be treated after the divorce?
- Do the parents agree on what happens to the child if both parents die?
These questions, and those that naturally arise after answering these questions, will help define how the court should handle the case going forward. It helps the court to determine the extent to which the financial resources must be made available for the child and the parent, who is primarily responsible for caring for the child with special needs. It will also help demarcate where the children of the marriage who have no special needs also need to be included in the equation.
If you are considering a separation or divorce, it is important that you have all relevant documentation about your child’s special needs (e.g. appointment with your divorce or custody lawyer. This will facilitate the discussion and give the lawyer a lot of information he needs to do the right thing for you and your child.
Ben Stevens has provided exceptional legal advice and assistance to families across South Carolina on all family law matters, including custody, child support, and divorce, for over two decades. He and his team are well equipped to handle all divorce and family matters, regardless of your circumstances. Contact our office at (864) 598-9172 or [email protected] to arrange an initial consultation.
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