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Family Law

Divorce Involving Children With Special Needs

Most divorces can be difficult and life-changing for everyone, especially if there are children involved, and the needs and best interests of children should always be a priority.

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However, divorce cases involving children with special needs present an additional and emotionally charged challenge.

Most cases with children who are neurodivergent or are diagnosed with behavioral or mental disorders have specialized needs that will affect the Custody and Possession order.

From a legal perspective, you will need to address:

  • Who the child will be living with?
  • How much contact will the child have with the other parent, legal guardian, or other party?
  • Who will be paying child support, and how much?

Because each case is unique, parents and lawyers also need to consider:

  • Agreement on the child's disabilities and needs
  • Possible spousal maintenance for the custodial parent
  • Visitation agreements
  • Transitioning between homes
  • Special education decisions
  • Special accommodations to ensure the child's safety
  • Health care needs
  • How to apply for assistance
  • Social activities and recreation
  • Estate planning and transitioning into adulthood

When it comes to divorce and child custody matters of a child with special needs, it's important to understand that arrangements and guidelines may differ from a typical custody case.

Because children with special needs often rely on specialized care and education, it can affect parenting plans and visitation guidelines.

In some cases, considerations need to be made far beyond adolescence, as children with special needs may need lifelong support and accommodations to transition into adulthood.

It's vital to work out child custody matters with an experienced divorce attorney who can help with the more complex aspects of your custody arrangement.

Addressing Medical Decisions 

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As parents consider divorce, the right of one party to make medical decisions concerning a special needs child must be addressed. Therapies can be a regular part of life for a child with special needs, so there must be an agreement on a plan for care.

This right can be granted to one of the parents or may require that both come together and make a joint decision. If the parents cannot agree to a course of action, the legal process is to have the child's pediatrician appointed as the tiebreaker.

The divorce decree will need to be drafted with care regarding

  • Medical needs
  • Medical costs, including who will be responsible for paying insurance premiums and deductibles
  • How information is shared between parents
  • How each parent is a part of the decision-making process
  • Who can change the child's medical providers and other factors

Medical decisions may include:

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Divorce Involving Special Needs Children - Family Law of North Texas
  • Agreeing on appropriate treatments, therapies, or interventions
  • Choosing the right specialist, such as pediatric neurologists or therapists
  • Communication around medication management and monitoring effectiveness or side effects
  • Establishing protocols for emergency medical care, including identifying emergency contacts and courses of action in urgent situations
  • Deciding on the use of assistive devices or adaptive equipment to help with your child's daily living needs
  • Making decisions about long-term care planning, including guardianship arrangements or transitioning to adult healthcare providers and services

The child's doctor should be consulted, as well as a divorce lawyer who is well-versed in the legal process of all divorce cases involving children with special needs.

Disabilities Education Act and Individual Education Plans (IEP)

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Making specific school decisions can also be significant. Many children with special needs require special education, identified by the schools, based on eligibility criteria outlined in the Individuals with Disabilities Education Act.

If a child is eligible for special education, they will receive an IEP (Individualized Education Program).

IEPs are customized plans developed for students with special needs to ensure they receive appropriate educational support and accommodations. They play a crucial role in public education for students and in promoting their academic progress and overall development.

There are some basic steps to putting an IEP in place:

  • Pre-referral: Document, elaborate, and evaluate the challenges the child is facing; review and evaluate classroom accommodations and instructional interventions; as well as supervise the development of the child.
  • Referral: If interventions implemented in the re-referral phase are unsuccessful, the student will be referred for special education services.
  • Identification: The child's interpersonal relationships, school performance, and behavior at home are assessed to help determine their needs. This step involves multidisciplinary teams, assessments, and data types to create an accurate report that can be used to determine the next steps.
  • Eligibility: If the child is identified as having a disability, the information from the identification phase will be used by the IEP committee to create an appropriate education framework for the student.
  • Development of the IEP: In this step, the actual IEP is created, and a team is put in place that includes the child's parents and appropriate educational staff and administration.
  • Implementation: The IEP is in place, and the services outlined during development begin in the form of accommodations and services such as occupational or physical therapy and speech pathology, to name a few.
  • Evaluation and review: IEPs rely on accountability and consistency, so a review is conducted yearly or after 3 years in some states. The main goal of the review is to ensure that the student is meeting their educational goals to determine if revisions need to be made.

These plans can take a long time to be put in place and require a team of school representatives and guardians.

To further complicate things, IEPs are generally specific to individual school districts, and thus, the court proceedings' final order may state that the child must remain in the school district until they are eligible to age out of the program.

Child Custody and Child Support

In many divorces, custody agreements are complex legal processes that need to balance the needs of the child with the parent's while also accounting for future circumstances.

In cases of children with special needs, establishing custody can be even more complicated. A detailed agreement will help ensure that future challenges can be handled smoothly and with less stress for the child.

One parent will need to be designated as the custodial parent, will be the primary caretaker, and will need to be equipped to take on a multitude of responsibilities.

It's important that parents honestly evaluate who has the best ability to take on this role and how the other spouse can provide support.

An important aspect of the custody agreement is the visitation schedule. In cases of children with special needs, it is incredibly important to stick to a schedule, as disruptions to their routine can worsen medical conditions and behavioral challenges.

Often, children with special needs have treatments and therapies to attend that need to be scheduled in advance and can't be missed, which requires a willingness to compromise and for the parents to work collaboratively.

A trusted and experienced divorce attorney or lawyer with experience in family law issues and special needs cases can provide advice to help facilitate that.

In regards to support, it's vital to ensure the divorce agreement provides for a comfortable life for the child and may include

  • Medical bills
  • Insurance premiums and deductibles
  • Special equipment
  • Spousal support
  • Financial support as they transition into adulthood and beyond

In some cases, parents may benefit from setting up a Special Needs Trust for their child. This is an account that provides financial support for the child's care and protects assets they may have from social security income.

Another option to consider is setting up a life insurance policy that will secure the child support payment or go into a trust.

Your divorce attorney can work with a financial advisor to help create a plan that will meet your family's unique needs and ensure the child is receiving the benefits they are eligible for.

The Importance of Trauma-Free Transitions, Consistency, and Routine For Special Needs Children

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Children with spectrum-related disorders thrive when there is consistency. When parents are changing possession of the child, they need to be mindful of the importance of routine.

It's vital that the child engages in a similar regimen at both parents' homes.

Developing a Consistent Routine May Involve

  • Establishing a consistent schedule around mealtimes, bedtime, and activities
  • Coordinating with the other parent to maintain a similar schedule in both households
  • Collaborating with teachers, therapists, and other professionals involved in the child's care to ensure consistency across different environments
  • Maintaining consistent rules and expectations between households
  • Keeping the child's living environment as consistent as possible, with familiar belonging and spaces in both households
  • Regularly assess the child's needs and adjust as the child grows and develops.

Custody and possession of children with special needs should be discussed with the family lawyers and their pediatrician to create a plan that minimizes the trauma associated with transitions.

This plan needs to be agreed to by both parents and must be manageable and strictly upheld in the best interest of the child.

Beyond the Spectrum

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Family Law of North Texas - Custody and Visitation for Child with Special Needs

 While it's one of the most common diagnoses, there are many cases where the child may not be diagnosed with Autism Spectrum Disorder (ASD) but will need similar considerations during divorce.

Other diagnoses include: 

  • Intellectual Disability
  • Specific Learning Disabilities (e.g., Dyslexia)
  • Down Syndrome
  • Sensory Processing Disorder
  • Speech and Language Disorders
  • ADHD
  • Oppositional Defiance Disorder
  • Anxiety Disorders
  • Depression and Mood Disorders
  • Reactive Attachment Disorder

Each diagnosis has a specific treatment path, and recommendations regarding the child's well-being and accommodations will need to be laid out in the custody arrangement.

Aside from ASD, the most common diagnoses are Attention Deficit Hyperactivity Disorder (ADHD) and specific learning disabilities.

Early intervention and special education services are crucial and will require extra sensitivity in divorce proceedings.

Regardless of the diagnosis, a special needs child relies on having someone reliable in their lives to advocate for their care and best interests.

A Note From Halina Radchenko Family Law of North Texas Founder

As a mother of a child with social-emotional needs, I am acutely aware of these issues as my family has lived through them.

When I handle a case in which one of my clients has a special needs child, I am hyper-vigilant to ensure that our decisions will work in the child's best interests. 

Being hypervigilant when a child has special needs shows the court that the parents are acting in the child's best interests.

Compassionate Legal Advice For Your Special Needs Case

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If you have a child with special needs, you need compassionate representation and must find an attorney who will fight for the needs of your child.

The right attorney can help you make informed decisions and take action to ensure that even in a two-home setting, the child is happy and comfortable.

Parents going through a divorce are faced with many hardships and tough decisions that need to be addressed while separating, which can become harder and more emotionally charged when a child with special needs is involved in the divorce process.

It is better to fully address issues during the divorce proceedings so that issues can be resolved in the best possible way for the child.

Consult a Divorce Lawyer Today!

Every family is unique, and it's important to find a parenting plan that takes into account the needs of everyone involved. However, it is possible to create an equitable plan that will serve the needs of your child.

You need an advocate that can help make tough decisions and ensure you understand all of the opportunities and pitfalls your child can face in your divorce.

At Family Law of North Texas, our experience with both family law issues and special needs children makes us a trusted and compassionate representation in your divorce case.

Call now for your free case evaluation.

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