10 Tips for Divorcing with a Special Needs Child

Divorce isn’t easy on any family. Kids can take the end of a marriage hard no matter how old or developmentally mature they are. But divorcing with a special needs child can add a new dimension to already difficult custody, visitation, and support negotiations. Here are some tips for divorcing with a special needs child.

Tip #1: Include Mental Health Providers in Telling Your Special Needs Child About Your Divorce

Whether your children have special needs or not, processing the idea that their parents will no longer be together will be hard on kids. Talking to your children about divorce requires you and your soon-to-be-ex-spouse to consider your kids’ age and developmental abilities, and give them time and space to process what they hear, think, and feel.

If your child has special needs, these considerations become all the more complicated. It is wise to include their therapist, counselor, or other mental health provider in planning when and how to break the news. Your child’s medical team will know best what your child will be able to process and will be able to advise both parents to create a plan for helping your child through the transition.

Notice that telling your children about divorce should involve both parents. It is always best for parents to present a united front when telling their kids about an upcoming divorce (i.e. “we have decided to divorce” rather than “your mother/father wants a divorce”). If your child has special needs – especially in the form of developmental delays or processing disorders – it is important for you to work together with your co-parent to create and follow a plan to introduce the idea of divorce and respond to questions, emotions, and concerns your children may have about the process. If your divorce is so high-conflict that you can’t cooperate with your spouse (such as cases of domestic violence), you may still want to speak with your child’s counselor or therapist since the conflict that your divorce presents will likely impact your child’s mental health, and may impact their physical health as well.

Tip #2: Help Your Attorney Understand Your Status Quo Before Divorcing with a Special Needs Child

When it is time to file your divorce, you would naturally turn to an experienced Maryland family law attorney for support and advice. While the attorney may understand the law, you are the expert in your family. Parents and caregivers for special needs children develop schedules, strategies, and solutions specific to their child’s special needs. Don’t assume your attorney can predict what solutions have worked for your child and your family. Even if your attorney has experience with a person or a child with the same diagnosis as your child, they may not have a clear grasp of your treatment plans, household patterns, or daily schedules.

Ask to walk your attorney through a “day in the life” of your household prior to separation. You may be inclined to overstate your role in your child’s care or downplay your spouse’s involvement. Resist that urge. Remember that your communications with your attorney are protected by attorney-client confidentiality. You can, and should, be honest with your lawyer about your circumstances, including what needs will no longer be met by your spouse post-separation.

Make sure your attorney also has a list of all your child’s medical providers, child care providers and support services, medications, medical equipment, and treatment schedule. This may seem like a lot of information, but getting it to your attorney early can:

• Speed up the discovery process
• Help your attorney build a case for your child’s custody and visitation
• Make sure your child has uninterrupted access to the medicine, equipment, and therapies they need to thrive

Tip #3: Have a Plan for Joint Legal Custody or Advocate for Decision-Making Authority

Legal custody is a parent or parents’ authority to make major life decisions for your child. This aspect of custody becomes essential when your child has special needs, since the chance that you and your former spouse will need to make hard healthcare or educational decisions for your child increase greatly with each diagnosis. Many parents who aren’t willing or able to play an active custodial role in their children’s day-to-day care still want to share joint legal custody to have a voice in their child’s upbringing.

However, because joint legal custody requires both parents to agree before medical treatment can be rendered or educational changes made, it can delay your child receiving the care they need in a crisis. If you and your ex-spouse are committed to joint legal custody, you will want to have a plan in place to notify each other when medical needs arise, and promptly communicate and agree on treatments. If you can’t agree, you would need to work with a mediator or collaborative law professional, or go back to court and ask a Maryland family law judge to make the decision for you. It can take weeks, if not months, to resolve a legal custody dispute.

If you don’t think you will be able to communicate or agree, you and your attorney should prepare to advocate either for sole legal custody – where you would be the only person authorized to make legal custody decisions – or tie-breaking authority – where you could have final say after consulting with your co-parent. These options can keep an uncooperative co-parent from frustrating your efforts to give your child what they need when time is of the essence.

Tip #4: When Pushing for Physical Custody, Be Sure You are Able to Provide Care

Sometimes parents push to be awarded physical custody more out of desire to keep control of their family or because they don’t want to have to pay their ex-spouse support. However, if you are the parent of a child with a mental, physical, or developmental disability, being that child’s custodial parent means far more in terms of time, energy, and effort. Before you tell your Maryland divorce attorney that you want your children in your custody full-time (except for reasonable visitation with the other parent), make sure that you consider what that will look like, practically speaking. Are you prepared to:

• Keep up with your child’s feeding, clothing, bathing, and personal care schedules on your own or with the help of family or professional support
• Supervise your child throughout the day while they are in your care
• Transport your child to doctors’ appointments, school, physical therapy, counseling, and other appointments
• Provide at-home assistance to meet your child’s therapy plan (such as encouraging the child to complete exercises or use behavioral techniques)
• Assist your child in completing homework assignments and special education activities
• Serve as the contact person for teachers, doctors, and other service providers for your child
• Protect your own physical and mental health with respite care, caregiver therapy, and other self-care strategies

If that all seems overwhelming, or if your co-parent has historically borne that load, it may be wise to consider a different parenting plan that better aligns with your capacity as a parent, and your child’s needs.

Tip #5: Schedule Visitation in Ways that Honor Your Child’s Abilities and Needs

When parents are able to agree on a parenting plan that controls custody and visitation of their child, it makes it easier for everyone, including the courts, to follow that plan and ensure that a child is able to maintain a positive relationship with both parents. There is no one standard parenting plan for Maryland parents in a divorce. With special needs, though, the considerations involved in preparing an access schedule may be far more complicated. For example, a child:

• On the autism spectrum may struggle to adapt to changing households or erratic schedules and may require a more consistent visitation schedule;
• With an anxiety disorder may need to have a clear and predictable schedule they can look at when they feel worried;
• Who receives physical therapy or counseling may need a visitation schedule that fits around their doctors’ appointments
• Receiving stimulant medication for ADHD may need an exchange time that gives them time to wind down and sleep

Before settling on a visitation schedule, talk to your child’s medical provider about the household priorities for their care. Explain that you and your co-parent are separating and ask what you need to consider when the child changes households. There may be coping strategies that you can use in both homes to reduce the disruption parenting time transitions may cause to your child’s physical or mental health.

Tip #6: Sharing Your Child’s Medical Equipment and Prescriptions in Two Homes

When kids travel between two homes for shared physical custody or access, it is often a struggle to make certain they have everything they need: from warm coats to bathing suits, electronics/devices and school assignments. A special needs child may require more specialized clothing, medications, and support items. Be sure that your parenting plan addresses how you and your co-parent will share your child’s wheelchair, inhalers, prescription medications, and other equipment. Depending on your child’s needs, it may be preferable to maintain separate supplies at each home, or to pass shared resources between co-parents as part of the parenting time exchange. Be sure both parents know whether a particular device, treatment, or tool is shared to avoid putting your child in the middle of a dispute and prevent access to items that they need while in either parent’s care.

Tip #7: Consider Child Support for Special Needs Children

Child support is designed to cover the day-to-day costs of raising a child. This includes ordinary healthcare costs. However, a special needs child’s expenses are often far higher than neurotypical, able-bodied counter-parts. In recent years, Maryland law has adjusted to allow parents to recover a portion of the uninsured costs of a child’s medical treatment based on the total out-of-pocket amount paid by the custodial parent each year, rather than each illness or condition. You need to have a clear understanding of your child’s financial needs before you negotiate child support. Discuss your health insurance eligibility post-divorce with your attorney, as well as all deductibles, copays, health insurance premiums, and other expenses related to your child’s care. Remember, this may also include the cost of childcare provided by a person skilled at addressing your child’s special needs. Then your family law attorney can advocate for a child support order that covers your child’s actual expenses, not just basic care.

Tip #8: Plan for Your Disabled Child’s Care After They are an Adult

A parent’s duty to provide support doesn’t automatically end at age 18 in Maryland. A Maryland child support order can continue beyond the age of majority if that child is still enrolled in high school – for children with developmental and learning disabilities – or unable to support themselves due to “mental or physical infirmity.” In these cases, the Court can order a parent to continue to provide the “destitute adult child” with food, shelter, care, and clothing even after they are legally an adult.

It is a good idea to plan for this post-majority support during the initial divorce negotiations. If you know that your child will continue to need care beyond the traditional school age, you may want to set up a special needs trust or make other arrangements with your co-parent to ensure that the funds are available to cover their needs into adulthood.

Tip #9: Alimony Is Available for Some Caregiver Parents

A parent’s historical role as caregiver for the family’s children may persuade the Maryland family courts to award alimony in their divorce. Several of the factors Maryland family court judges consider touch on the division of labor in the household prior to the separation or divorce:

• The recipient spouse’s ability to be wholly or partially self-supporting
• The family’s prior standard of living
• Each spouse’s contributions – monetary and nonmonetary – to the family’s wellbeing
• The circumstances that contributed to the parties’ estrangement (what caused the divorce)
• Any agreement between the parties
• The financial needs of each party (including income, income producing assets, retirement benefits, and financial obligations)

When a parent has stayed at home to provide for a special needs child, it can increase that parent’s ability to receive alimony to supplement his or her income and ensure that children still have the support they need. It may be that your child’s Individualized Education Plan (IEP) or medical care requires such active parental involvement that holding down a job would be difficult, or even impossible. However, in other cases it may be worth considering whether hiring a qualified childcare provider or home health aide would allow you to become more financially self-sufficient while at the same time providing for your child’s care. You and your attorney should take a practical look at your ability to enter the job market, and weigh the pros and cons of relying on alimony for your support.

Tip #10: Consider Government Benefits When Negotiating Support

Avoid putting your child’s “means tested” government welfare benefits at risk. If the custodial parent receives too much income in the form of alimony and child support, it could disqualify the family from receiving certain government benefits. You may need to work with a special needs attorney or a financial advisor to know just how much you can receive from your ex-spouse and still be entitled to benefits.

That doesn’t mean you have to manage with less support. In negotiating these payments, you and your divorce attorney should consider in-kind support or agreements that require the non-custodial parent to pay for certain medical expenses, housing costs, or special education tuition directly to eliminate the risk that an absolute judgment of divorce could cause your child to forfeit their entitlements.

At the Law Office of Shelly M. Ingram, we know how hard it can be to successfully co-parent a special needs child. Our Maryland divorce lawyers are trained in collaborative divorce, mediation, and litigation strategies. We can help you resolve co-parenting disputes, create a custom parenting plan, and negotiate a fair child support and alimony award to make sure your child’s special needs are met. To talk to a collaborative divorce attorney or schedule a mediation, call us at (301) 658-7354 or contact us online to schedule a confidential office consultation.