Separating and Divorcing with a Child with Special Needs

For some years I’ve had the honor of facilitating conversations between parents of children with special needs and school districts as they coordinate efforts to develop the most appropriate educational plan to ensure success for these children.  I quickly realized my naïve and cursory understanding of the challenges confronted by these families and their children – financial, caregiving, affordable and accessible community resources and immediate and long-term planning.  Coincidentally, at the same time, an increasing number of couples with children with special needs have appeared in my practice, presenting unique challenges and needs much greater than the needs of families with typical children.   Daily living and ordinary moments of personal care, meals and socialization become an extraordinary challenge.  

The financial complexities of separation and divorce for these families are well beyond the income driven Pennsylvania Support Guidelines (“Guidelines”).  The charts and formula applied by the Guidelines to calculate support for a child and a spouse may be wholly inadequate and do not consider the higher costs inherent in raising these children.  The Guidelines do allow for a variation of the support amount calculated from the charts and formula if there is documentation of “unusual needs and unusual fixed obligations.”  Consider –  specialty medical care, services and equipment that may be required; non-prescriptive treatments such as vitamins and nutritional needs; tutors; occupational, speech and physical therapists; aides; and respite care for parents.  Yet, many of these expenses are constantly changing.  How are they estimated and budgeted for?  The parent or spouse who is not working or has reduced income because of the care required for the special needs child is also in a predicament.  How long will the child need care?  Will there be a time in the future when this parent can return to work full- or part-time?  If so,   what skills does this parent need to secure viable employment?  What is the cost/benefit analysis of the parent returning to work and the cost of a paid caregiver?  Will the couple need to plan for the child’s long-term care?

Certain public benefits are available to a child with special needs.  However, a child’s eligibility to receive some of these benefits is impacted by how payment of the child support and spousal, including alimony, is made.  For example, a child’s eligibility for Supplemental Security Income and Medicaid includes “cash payments” made for both child support, whether or not the child is a minor, and spousal support/alimony.  So, to avoid the disqualification of a “cash payment”, consider a direct or “in-kind” payment  of –  goods for and services that benefit the child, mortgage or loan for specialized transport vehicle, child’s after-school or summer program, or child’s non-covered prescriptions.  The means by which the support is paid requires careful planning to maximize the child’s eligibility.

Parenting typical children in a two-parent or single-parent home requires extraordinary parenting under the best of circumstances.  Separating or divorcing families who have a child with special needs present complex challenges in crafting individualized parenting plans.  Consideration must be given to the child’s specific symptoms, treatments and supports for their well-being, as well as the demands on a parent.  Depending on the developmental, physical and psychological nature of the child’s needs, the child may function significantly below his/her/their developmental or chronological age and have greater needs than typical children.  For this reason, commonly recommended, developmentally-based parenting plans may be inappropriate.  For example,   neurodevelopmental conditions that include autistic spectrum disorder, attention deficit/hyperactivity disorder, and severe depressive disorders (particularly in the teen years), which may involve suicidal or self-harming behavior; chronic developmental disorders, physical disabilities; serious medical conditions; and severe psychiatric and behavioral disorders.   Risk and protective factors should inform the parenting arrangement.  Consider whether the parent’s general parenting skills are enough to provide the specific skills for the child’s special needs.  Does the parent have a fundamental understanding of the developmental, physical and psychological nature of the child’s condition and treatment – essential to making appropriate decisions for the child?  Are the parents in agreement about the child’s diagnosis, prognosis and treatment?  Does the need for consistent routine and stability and/or the need for safety and supervision outweigh a schedule that provides significant time with both parents or signal a residential placement?  How will parents schedule time with other typical children?  Developing an individualized parenting plan for a child with special needs that supports the child’s cognitive, social and emotional development, safeguards his/her/their physical safety and simultaneously provides opportunity for enhancing parent-child relationships requires a specialized approach to parenting.  

And, what about the future?  There is no crystal ball to forecast when or if  this child will be able to be employed or to live independently.  A child with severe impairments most likely faces life-long care-giving.  Future planning for these children is a must.  Considerations include:  will   a guardianship be needed if one or both parents die before the child reaches the age of majority or die after the child transitions to adulthood; will the child be self-sufficient or need a conservatorship; who will act as the child’s advocate once the parents have died; what will the future care of the child look like (living arrangements, recreational activities, social and medical support).  Is a special needs trust necessary to provide a quality of life for the  child while ensuring eligibility for government benefits?  

Separating and divorcing families who have a child with special needs present unique challenges that are rarely understood by judges and lawyers.  In litigated divorce proceedings, judges use their discretion to make decisions regarding the welfare of these children.  While the ruling of a judge may be completely “legal,” it may not provide the best outcome, falling short of addressing the complex and varying needs of the family and child.  As a result, many families are unprepared to meet the demands of their special needs children after divorce.

However, there is an alternative.  The  collaborative law process is a way for these families to better address their individual needs and achieve the best outcome for their child.   Using a well-trained, skilled and knowledgeable team of interdisciplinary professionals, parents will have the assistance needed to negotiate the best outcomes to problems that are unique to their family.  For example, professionals that may offer assistance include financial specialists to help navigate the complexities of assessing the family’s needs and resources both now and in the future, legal advisors who can provide information related to family law and estate planning for your child’s future, specialists who can assist parents through difficult and emotional conversations, specialists who can bring the child’s voice into the problem solving process, child development professionals, and  physicians and specialists who are involved in the child’s treatment and care.  If you are the parent of a child with special needs, separating from your partner or divorcing, consider the collaborative process to better identify and provide for your child’s needs with minimal stress and anxiety.  Collaborative law may offer the solution you need.  Be in touch if you would like to learn more!