I am currently preparing for trial in a case in which there is a special needs child. These cases bring another layer of topics to the already crowded plate. No divorce is easy, and when children and custody issues are involved it is more difficult. However, when a special needs child is involved, there are complex issues which arise and which must rise above the parent’s anger, emotions, and anxiety, of the process.  

 First, one primary issue is that of the expenses associated with the child. If the child is receiving governmental assistance, it is imperative that a divorcing parent consult with counsel that is familiar with special needs trusts as well as special education. What is it they say about “the best laid plans???” Parents trying to plan for the future with the best of intentions may create now, a situation which will later impede the child’s ability to qualify for and receive benefits. That having been said, it is critical to anticipate, to the extent possible, the current and short to mid term custodial and financial needs of the child so that an appropriate parenting schedule and amount of support can be set in order to avoid an expensive trip back to the courthouse later in order to make modifications or to obtain an increase in support.

 

Another issue which needs to be addressed is the bona fide day time needs of the child. I was involved in a case several years ago in which the father thankfully realized that due to the severity of his son’s problems, the mother, who was otherwise employable and capable of supporting herself, needed to be available to take care of the child during the day. I have had other cases in which a parent has essentially tried to “exploit” a child’s otherwise minimal disability in order convince a judge that employment outside of the home was impossible. In the vast majority of cases that are filed in New Jersey, both parents have, or will presumably have to work outside the home. In a case when there is a special needs it is imperative to accurately assess the true needs of the child. This may often involve the retention of an expert who is familiar with the particular disability of the child in question.

 

Divorce is stressful under the most “ideal: situation. However, when the parties have a special needs child, it is critical to make sure the parents are considering all aspects which carefully consider the present and future needs of the child.

One Response to Taking Care of a Special Needs Child in a Divorce

Dear Ms. Millner:
I am the author of a book that was just published by the American Bar Association, entitled “The Special Needs Child and Divorce.” It addresses all the issues you raise in your posting.
I am a divorce lawyer and the mother of a 14 year-old who was diagnosed with autism when he was 3 years old. His father and I divorced when my son was 6 years old. I have handled many divorce cases involving special needs children, and I now serve as an expert witness and/or consultant on these cases throughout the United States.
Thank you for bringing this important issues to light. With the extremely high divorce rates in our families, we need to have attention brought to this issue.
You can find the book on the ABA webstore:
http://www.abanet.org
Margaret “Pegi” Price

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