Family Law and the Family with Special Needs

by Ilene Young

Separated families of every kind deal with the difficult issues of custody, support and relocations. For families with children with special needs, the challenges can involve more than maintaining family relationships and financial status quo. Most courts are unfamiliar with the unique needs of our children. It is important for these issues to be clearly raised at the time that custody and support are being considered. Some special considerations:

1. Location of the Primary Custodian: The parent with whom the child spends most of his time is the primary physical custodian. The residence of this parent will generally be the child’s residence for purposes of school enrollment and medical and other services. When parents live in different locations, the quality of services may differ and the welfare of the child may be impaired. States differ widely on their eligibility requirements for medical assistance and behavioral supports, for example. School districts vary widely in the quality of their special education programs. In cases where each parent may be equally qualified for primary custodian status, the quality of services available at each proposed legal residence may be a decisive factor in the custody determination of the court.

2. Decision-making: The right to make decisions concerning the child is known as “legal custody.” Shared legal custody, the most common form of legal custody for divorced parents, contemplates each parent having an equal say in the therapeutic, social and medical decision-making for their child. In the case of children with special needs, this may cause problems.

Example 1: A child with AS may be on a gluten free diet while living with mother, who is primary custodian. During partial custody weekends and vacations with father may mother impose this same diet in father’s household, where he is equally legal custodian and does not believe the diet is worth the trouble?

Example 2: May mother choose a better residential placement for a severely disabled child where father objects that there is one closer and more convenient for him to maintain the parent child relationship? What if one costs more than another? What if the parents have agreed to split such costs –and one argues for a state run facility of much poorer quality? Who manages the complex advocacy problems of obtaining funding and services from different streams? Who pays the attorney or advocate?

Legal custody orders or agreements must be carefully drafted to deal with possible conflicts and difficulties, and to maintain the child’s best interests.

1. Support: In the case of special needs children, child rearing expenses may far exceed those anticipated by the support guidelines used to calculate support payments. The needs of a child may require one parent to be unemployed or underemployed in order to be available to care for the child. Standard marital separation agreements and support agreements frequently provide for estates, annuities, pensions or life insurance to be held with the child named as beneficiary. In the case of children with special needs who need to maintain their eligibility for medical assistance, social security, and other entitlements in adulthood, the sudden receipt of an inheritance or insurance payment in their name may cause them to lose their services. All life planning for any disabled individual must be carefully done with an eye toward preserving necessary benefits. Where there are two families involved, this planning must be coordinated.