Down Syndrome Awareness Month provides a unique opportunity to educate, advocate, and celebrate individuals with Down Syndrome. It is also a time to raise awareness of their needs, particularly as they relate to navigating a tumultuous family situation such as a divorce.
While divorce is difficult for any family, it presents additional complexities when a child with Down Syndrome or other disability is involved. Divorcing parents with a special-needs child must consider many unique legal, financial, and emotional challenges during the divorce process, from their long-term care to their educational and emotional needs. If you are navigating a divorce, its impact on your special needs child must be carefully considered.
Custody and Parenting a Special Needs Child
One of the most critical issues during a divorce is the custody of your minor children. This becomes even more complicated when a child has special needs.
The overarching goal of the court in a divorce is to ensure a child’s best interests. When the divorce involves a child with special needs, the court will take an even more careful approach.
When custody disputes arise involving special needs children, family courts recognize there will be more complex physical, educational, and emotional needs, and this can significantly impact how custody is awarded.
Physical Custody
Physical custody is where your children will primarily live.
Because special needs children do better with stability and routine, any disruption caused by frequent changes in their living arrangements can be challenging. As a result, the court often takes this into account when making physical custody decisions.
Minimizing travel may be essential to reducing your child’s stress during the divorce. Consequently, standard joint custody and visitation schedules may not work when a special needs child is involved. The court may consider which parent’s home is closer to their medical care, school, therapy sessions, or other needs. At the very least, schedules must be flexible enough to accommodate the child’s medical and emotional needs or their ability to transition between homes.
Legal Custody
Legal custody is the right to make important decisions regarding your child’s upbringing, education, healthcare, or religious affiliation.
Especially in the case of a special needs child, the court will look for your ability as parents to collaborate on decisions involving your child’s education and healthcare.
The Importance of Effective Co-Parenting
For your special needs child, the way you co-parent during and after your divorce can have a significant impact on their well-being.
The court will want to see that you and your spouse can prioritize your child’s well-being over your conflict. This can include your ability to
- Prioritize your child’s stability and routines
- Maintain open, honest, and respectful communication
- Make critical decisions about your child cooperatively
- Collaborate on financial and future care planning
- Work together to provide emotional stability and support
A high-conflict divorce can cause your child confusion, stress, and emotional harm. Consequently, co-parenting a special needs child will require more cooperation and communication between co-parents. You will want to minimize conflict, avoid arguing in front of your child, and maintain calm, consistency, and a unified front when they are around.
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Child Support and Other Financial Considerations
Child support is another important consideration during a divorce. However, raising a child with physical or cognitive disabilities often comes with exceptional financial responsibilities such as educational, medical, and long-term care planning considerations that aren’t usually considered in typical state child support calculations. During your divorce, the fair division of these responsibilities will need to be carefully addressed.
Standard Child Support Calculations
Every state has standard support guidelines and calculations designed to ensure consistency and fairness in child support. Most standard guidelines address the child’s basic needs, the income of both parents, the number of children requiring support, and the couple’s custody arrangements. However, when a child has special needs, the guidelines may fall short of what is truly necessary for that child’s care.
If your child has special needs, child support will need to consider any extraordinary additional expenses associated with their care, including ongoing medical care and therapy, specialized equipment or home modifications, educational needs or specialized schooling, and personal care attendants or other caregivers. Both you and your spouse are expected to contribute to these expenses fairly, and the court will determine this in proportion to your income. Generally, one parent is considered the primary custodial parent, and the non-custodial parent will pay child support.
Healthcare and Insurance
Your child’s healthcare needs may be extensive and ongoing, which makes healthcare coverage critical. If the court is making decisions for you, it will ensure your child’s healthcare coverage remains intact and that you and your spouse contribute fairly to non-covered medical expenses.
Divorce can affect which parent will be responsible for providing health insurance for your child. If one of you has better or more affordable insurance coverage through an employer, the court may require that parent maintain coverage. If both you and your spouse have health insurance, you may be able to coordinate coverage so your child can benefit from the best possible care with minimal out-of-pocket costs.
However, some costs for a special needs child will not be fully covered under your health insurance. These include deductibles, co-pays, therapies, and other specialized care. During your divorce, you and your spouse must agree on how you will divide these expenses. If the court is making decisions for you, it may order both of you to contribute in proportion to your income.
Long-Term Planning
When you have a special needs child, you will need to think about their long-term care and financial needs. Your child may need support well into adulthood, and you must consider how you and your former spouse will provide for it. Your options could include
- Extended child support – Many states allow for child support for children with disabilities to continue beyond the age of 18. Depending on how self-sufficient your child is, the court may require you to continue this support into adulthood.
- Special needs trust – Establishing a special needs trust allows parents to provide support without jeopardizing their child’s eligibility for government benefits. This trust can be funded by both parents and managed by a mutually agreed upon trustee, ensuring your child has long-term financial security.
- Guardianship or powers of attorney – As your child approaches adulthood, you and your co-parent may want to establish legal guardianship or powers of attorney to ensure that their needs will be met and properly managed.
- Government benefits – Divorce can significantly impact your child’s access to Medicaid and Supplemental Security Income benefits. A special needs trust or Medicaid waiver should be considered if your child relies on government benefits.
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Keeping a Focus on Your Child’s Emotional Needs and Psychological Support
Divorce is difficult for all children, but for those with special needs, this time can be especially overwhelming. Depending on your child’s cognitive abilities and maturity, they may have difficulty processing everything going on around them. This is when you and your co-parent must take extra care to provide your child with the emotional support they need. You can do this by
- Reassuring your child and creating a sense of stability in whatever way they can understand
- Maintaining your usual routines as much as possible with school, appointments, and activities
- Ensuring a consistent visitation schedule so your child know exactly when they will be spending time with the other parent
- Encouraging them to talk about their feelings and providing a safe space for them to do this
- Maintaining a strong support system, and keeping familiar faces involved
- Working with a therapist experienced in divorce with special needs children
- Working with a therapist as a couple to help you understand what your child will need from you and how to communicate more effectively with them
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Working With the Right Legal Counsel
Navigating a divorce is difficult enough, but when your primary concern is the welfare of your special needs child, it can be overwhelming and exhausting. Working with a family law attorney with extensive experience in divorces involving special needs children will be critical.
A divorce attorney experienced with special needs families will comprehensively understand the legal, financial, and emotional complexities involved. These include
- Understanding your child’s medical, cognitive, emotional, and educational needs, including their financial impact
- Understanding that special needs children require routine, consistency, and cooperative co-parenting instead of taking an overly contentious and aggressive approach
- Appreciating the critical need for spousal support when one party must stay home to ensure the care of the special needs child
- Understanding child support adjustments and how to structure a child support arrangement to ensure your child’s needs are adequately met
- Understanding public benefits such as Supplemental Security Income and Medicaid and how divorce can affect your child’s eligibility
Divorcing with a special needs child is no ordinary divorce. Your attorney should be highly knowledgeable and take a measured and compassionate approach while protecting your welfare and your child’s future,
If you and your spouse are navigating a divorce, this Down Syndrome Awareness Month can offer insight and shine a light on how best to approach your divorce and protect your child’s care and well-being as a team. The priority, after all, is that your child receives the support, care, and stability they deserve. If you need further information on navigating the divorce process with a special needs child, contact the experienced family law attorneys at Melone Hatley, P.C. today at (877)395-5598. We will be your compassionate legal partner each step of the way.
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