By Margaret "Pegi" S. Price, Family Lawyer
In addition to the myriad of issues we must keep in mind when handling divorces, paternity cases and modifications in today's complex world, there are important additional issues that must be considered when handling cases that involve children with special needs. These issues are not taught in law school and are rarely covered even in family law seminars, so do not assume you are prepared to handle these cases properly.
Children with special needs are particularly vulnerable to negative consequences when their families are going through divorce. When the standard, "cookie cutter" judgments, parenting plans and settlement agreements are used without appropriate consideration being given to the unique issues of the specific case, these children can suffer. Family lawyers need to consider the special needs issues when resolving custody issues and financial issues.
Custody Issues and Special Needs
A standard custody plan in your jurisdiction might provide for the child to be with Mother every Monday and Tuesday, with Father every Wednesday and Thursday, and for the parents to alternate weekends. For a child with autism, for example, who has difficulty with transitions, this schedule would be stressful and could even be harmful. When family lawyers and judges are unaware of the issue of transitions, they are oblivious to how this schedule would impact the child.
A 175-pound teenager with cerebral palsy might require special lifting and transfer equipment which is only located at the custodial parent's house. If the parenting plan provides for extended visitation at the non-custodial parent's house, the child might have to spend days on end in bed because of the physical transfer logistics.
Use of a standard custody plan might result in the child being dropped from therapy, as many therapies for school-age children are in the afternoon and early evening. If the custody plan sets aside certain days to a parent without inquiry into whether that parent is available to take the child to her therapy, the child might have to sit in after school care during that time period, and miss out on her therapy.
Financial Impact of Special Needs
The special needs of the child can have a great impact on the family finances. There can be increased direct costs, such as doctors, therapists, hospitalizations, surgeries, medications, supplements, specialized equipment, home environment modifications, special dietary requirements, co-pays, deductibles and other medical costs. There can be other costs as well, such as home therapy supplies, caregiver training, special clothing and personal care item requirements (for a wheelchair-bound child or a child who is in diapers after the age of three years, for example), vehicle modifications, school modifications, classroom supplies, tutors, cost of non-parent caregiver, and travel and lodging expenses for out-of-town treatment.
The primary caregiver parent might have to devote extra time to the care of the child, which may result in the parent being unemployed or underemployed. This affects the finances in the obvious way, which is the lack of or a lesser paycheck, as well as unavailability of employer-provided health insurance for that parent. It can also affect the finances of the primary caregiver parent long-term, as they might not have a pension or 401(K) plan, or may be passed over for promotions, raises and other advancement in their career.
Emerging Area of Law
Clearly, none of us want to have these results. The best interest of the child demands greater care and inquiry. When we think about it, we realize that cases involving children with special needs have to be handled in a different way. But where do we find out how to handle these cases? There is a great deal of information available on special needs or disabilities within the areas of education, employment, health care and government benefits. There is very little information available on special needs or disabilities within the area of family law. This is an emerging area of law, and certainly one whose time has come. With so many families having a person with special needs, these issues should be addressed if we are to properly handle their cases.
There are ways for you to be better prepared to handle these cases. Tailor your office forms, from initial intake questionnaires through pleadings, motions and discovery and on to settlement agreements, parenting plans and judgment forms, to address special needs issues. Learn what documents you need to get when handling these cases. Schools are a great source of information that can be useful. Make sure you get a copy of the IEP (Individual Education Plan) as well as other assessments and reports from the child's school. Get medical records and therapy records. Hop on the internet and read up on the child's particular special need. Print helpful online information for your file. Get definitions of the medical terminology in the medical records and online resources. Prepare a summary sheet with bullet points about the child's condition and terminology definitions to use as a cheat sheet for court and depositions. Talk with the child's teachers and therapists. Learn about the child's medications and how they affect the child. Get a written schedule of therapy and activities to use when tailoring the custody and visitation schedule. Create a special needs issues sub-file within your office file to have all this information at your fingertips. These steps can help you meet the special needs issues of the child and family.
This is not intended to be a message of doom and gloom. When these cases are handled properly, you can achieve a good result for the family. I have seen many cases in which both parents and the children were happier and better off after the divorce, when the cases were handled with proper attention given to the special needs issues. I have experienced this as a lawyer and as a divorced parent of a child with autism. When the special needs of the child are given priority, and the lawyers creatively craft the documents to meet those needs, good results can be achieved.
Margaret "Pegi" S. Price practices exclusively in the area of family law. She is the author of the books, The Special Needs Child and Divorce: A Guide to Evaluating and Handling Family Court Cases (2009); and Divorce and the Special Needs Child: A Guide for Parents (2010), and many legal articles. She is a frequent speaker at national and international conferences, and is a divorced primary caregiver parent of a 16 year-old son who was diagnosed with autism when he was 3 years old. You can find her website here: http://www.margaret-pegi-price-divorce-law.com