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When Parents of Children with Disabilities Divorce

It is estimated that one million divorces in America each year are between parents with children. Children can be highly affected by the divorce of their parents; a child with special needs can be just as affected, and the decisions and divorce agreement can be more complex because of the needs and responsibilities for that child.
When children are involved in a divorce, custody determinations and modifications are considered, and the court's decisions are based on the "best interest of the child.” The words "best interest of the child" has no single meaning; they must be interpreted case-by-case, and the laws in most states consider a number of complex variables when defining "best interests," including:
  • the capacity of each parent to understand child’s needs
  • the ability of the parents to meet the child’s needs
  • the stability of the home environment
  • the relationship between the child and parents, siblings, and other involved family members
  • cultural considerations, such as religious practices, family /culture traditions, diet, and language
  • the child's wishes
  • the child’s need for continuity
  • parental discipline methods
  • the age and gender of the child
All children, including those with a disability, are unique and respond differently to divorce. When considerations are being made, each child should be looked at individually. If you’re going through a divorce, make sure that you and the court carefully consider your child’s age, emotional maturity, resiliency to change, and ability to cope with changes in family structure, both during and after the finalization of the divorce. It is helpful and necessary for divorcing parents to recognize more than just their legal responsibility to their child, and to be willing to adjust their home environment in ways that can help their child’s healthy development.
When a divorce involves a child with special needs, parents and lawyers should also focus on clear resolution of these critical issues:
  • visitation agreements
  • transition between homes
  • educational decision making/involvement
  • health care and medical needs, including therapy
  • appropriate supports and services for the needs of the child
  • social and recreational opportunities
Sometimes both parents are not in agreement when addressing the needs of their child with a disability. One parent may be in denial about the special needs, or may not agree with the other parent on the best approach to care for and meet the needs of the child. Parents may want to consider working with neutral professionals (besides their lawyers) that can assist in making decisions about the needs, care, and treatment of the child, and may be able to help by offering alternative solutions to typical visitation agreements.
Generally, a visitation arrangement for children (with or without special needs) involves alternating between the two parents' homes, as well dividing time for holidays and summer breaks. For a child with special needs, it may be better to minimize frequent changes in schedule and environment, especially during the school year. For example, parents can consider arranging longer visits with each parent, instead of short visits with frequent alternation. For many children with disabilities, especially children who live with autism spectrum disorder, a disruption to their daily routine can affect behavior and school performance and result in unnecessary stress for both the children and parents. Parents should work to ensure that the routines in each household are similar, minimizing the negative impact on their child.
Parents will also need to take a thoughtful approach to child care (for further information see Finding Accessible and Affordable Childcare). The primary caregiver may need to rely on respite care for help at home, or find a child care facility that is able to respond to the unique needs of the child with special needs. With respect to these arrangements, parents should aim to minimize last-minute changes. Even slight changes, such as a different pick up location or time, or a different caregiver can disrupt a routine and create anxiety for the child. With some children, even as they grow into adulthood, strict and familiar routine may be an ongoing need. Children with special needs may also require supervised care as they get older. For example, a child who lives with a developmental and/or physical disability may always need supervision and assistance with the activities of daily living, such as bathing, dressing, eating, and social interaction.
Children with special needs should be given the same opportunities as children without special needs, such as education, social and recreational opportunities, and the ability to be as independent as possible. Families often struggle to overcome barriers that may exclude a child with disabilities in school and social settings. To promote inclusion, parents should do their best tocontinue to work together, advocating opportunities for their child to be included in school and social activities.
School age children who qualify for special education will be identified by the school system under the eligibility criteria outlined in the Individuals with Disabilities Education Act of 2004 (IDEA). This law insures individualized services to students in public schools and emphasizes inclusion of students with disabilities to the extent possible with their non-disabled peers. Eligible children will receive an Individualized Education Plan (IEP) (for further information see A Guide to the Individualized Education Program) that is overseen by a team of school professionals and their parents. The IEP is developed by this team, and it is helpful to have both parents input to make decisions on academic goals, placement, accommodations, assessments and other supports. For further information on an IEP see Special Education .
For other students whose disabilities may require minor support related to their education, Section 504 of the Rehabilitation Act of 1973 provides eligible students with accommodations and modifications to assist them in the school environment. Section 504 is a civil rights law that prohibits discrimination against individuals with disabilities and ensures that the child with a disability has equal access to an education. Under this law parents also participate in meetings where appropriate placement and services are determined. Once again, if possible, children will benefit if both parents are present at these meetings, sharing in the decisions and learning about the services and accommodations available for their child. (For further information on Section 504 go to Section 504 of the Rehabilitation Act).
Along with the family law attorneys, parents should obtain school records that document their child’s disability and describe the IEP and/or 504 accommodations that have been designed to meet the unique needs of their child. School records can often be used to illustrate why any request that deviates from prescribed guidelines is appropriate or not. These records provide information related to the child's disability and give recommendations for needed supports. This information is valuable in helping parents develop a child-centered visitation plan.
Records should be reviewed for the following:
  • the individual assessment report that includes test scores for both intellectual functioning levels and academic performance levels
  • behavioral information and suggestions for instructional approaches that address the unique needs of the child
  • medical records that document the disability and outline prescribed treatment
  • the current IEP
  • psychological reports, speech evaluations, assistive technology evaluations, functional behavioral evaluations, occupational therapy evaluations, and physical therapy evaluations
It is important for divorcing parents to have a final divorce decree that clearly states which parent will make educational decisions, or in cases where these decisions are shared, how parents can overcome disagreements. Precise drafting of the decree helps guide the decision-making process so needed services are not delayed.
For parents of children with disabilities, medical treatments, therapies and appointments can be part of the daily routine; they must agree on a plan to assure how and when their child will get necessary care, and how they will make critical decisions regarding their child’s health. For children with medical conditions such as cerebral palsy, physical impairment, seizure disorder, and other serious health conditions, critical decisions include ongoing medical care, medication management, periodic appointments with primary care clinicians and specialists to monitor and treat conditions, and sometimes consent to invasive procedures.
The divorce decree will need careful drafting regarding medical decisions. If needed medical services are frequent and involve additional expense, agreements will need to be made about how each parent is included in the decision-making process, how information is shared when necessary medical services are recommended by the child's physician, and how to address decisions about invasive procedures. A decree may also address counseling, physical therapy, speech therapy, occupational therapy, or other treatments.
Social and recreational opportunities are important for children with special needs. Parents can work together to locate appropriate activities for their child. Many communities offer specialized structured activities (see Recreation Activities) for children with disabilities such as softball, skiing, art classes, swimming, and camps. Responsibility for taking the child to these activities can be shared, so that each parent can enjoy these experiences with their child.Parents should also work together to maintain the schedule for social and recreational activities. Sometimes social and recreational schedules demand parents be flexible with visitation so that the child can participate on a regular basis. Transportation to and from activities may require more coordination between parents for the benefit of the child.
As children mature, parents will need to work together to explore options for post-secondary education and training, employment, independent living, and other goals for their child’s future. Planning for the future requires an organized (and unified) approach to locating community supports, completing applications, developing skills, and practicing self-advocacy skills. Many students with learning disabilities, emotional disabilities, or physical disabilities are successful in continuing their education after high school graduation, and all students will benefit from both parents’ support and assistance as they prepare for the next step.
Children with special needs or disabilities will need the continued support of both parents. Custody and visitation plans should be designed with the best interest of the child in mind, and the child’s interest should guide parents’ decisions as the child continues to grow and mature into adulthood. Some children will require continuous care as they grow, and parent support will continue through adulthood. These parents will also need information about health insurance for adults with disabilities, Social Security (see Social Security Administration), estate planning, guardianship (Guardianship/Estate Planning), and independent living (Independent Living) as they continue to coordinate their plans for their child’s future.

Resources

Information & Support

For Parents and Patients

Financial Planning Association, Divorce and Your Special Needs Child
This web site offers information on issues of child custody, visitation, and support and property division.

IDEA
Official U.S. Department of Education description of IDEA Part B (ages 3-21) and Part C (ages birth-3).

A Guide to the Individualized Education Program
Information about special education and IEPs from the U.S. Department of Education.

Social Security Administration
Disability determinations are generally made by a disability determination service (DDS) and can take several months. However, if a child has a diagnosis that provides for presumptive eligibility, a letter from the doctor certifying the diagnosis and its severity will allow for the patient to begin to receive services for up to 6 months while the application is being processed.

Authors

Author: Tina Persels - 9/2013
Contributing Authors: Shena McAuliffe, MFA - 9/2013
Gina Pola-Money - 9/2013