When Parents of Children with Disabilities Divorce

Introduction

About one million divorces in America each year are between parents with children. Children can be very much affected by the breakup of their parents; a child with special needs can be just as affected. The divorce agreement can be more complex because of that child’s needs and responsibilities of caring for him or her. This page will help both parents know what to do in this case.

Best Interests of the Child

When children are involved, custody judgements and changes are weighed, and the court's rulings are based on the "best interests of the child." The phrase "best interests of the child" has no single meaning. The child’s best interests must be made clear case-by-case, and the laws in most states look at many complex factors when defining "best interests," including:
  • The ability of each parent to understand the child’s needs
  • The skill of the parents to meet the child’s needs
  • Whether the home is a stable place to live
  • The relationship between the child and parents, brothers, sisters, and other involved family members
  • Cultural factors, such as religious practices, customs, diet, and language
  • The child's wishes
  • The child’s need for stability
  • Parental discipline methods
  • The age and gender of the child
All children are unique and react differently to divorce. Each child's needs should be considered during the process. If you’re going through a divorce, make sure that you and the court keep in mind your child’s age, emotional maturity, resiliency, and how they cope with changes in family structure, both during and after the finalization of the divorce. It is helpful and necessary for divorcing parents to know more than just their legal duty to their child, and to be willing to change their home setting in ways that can help their child’s healthy progress.
When a divorce involves a child with special needs, parents and lawyers should also focus on clear solutions for:
  • Visitation agreements
  • The shift between homes
  • Decisions about education
  • Health care needs, including therapy
  • Supports and services for the needs of the child
  • Social activities and recreation
Sometimes parents do not agree 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 way to care for and meet the needs of the child. Parents should consider working with neutral experts (other than their lawyers) that can help in making choices about the needs and care of the child, and may be able to help by giving other solutions to visitation agreements.

Visitation and Custody

Visitation for children (with or without special needs) involves switching between the two parents' homes, as well sharing time for holidays and summer breaks. For a child with special needs, it may be better to make fewer changes in schedule and setting, especially during the school year. Parents might arrange longer visits at each house, instead of short visits with frequent change.
For many children with disabilities, especially children who live with autism spectrum disorder, a change to their day can affect their behavior and cause stress for both the children and parents. Parents should work to make sure that the routines in each household are the same, so the child has less to adjust to.
Custody and visits should be planned with the best interest of the child in mind, and that should guide parents’ choices as the child grows into an adult. Some children will need comprehensive care as they grow, and parental support will continue through adult age. These parents will also need information about health insurance for adults with disabilities, Social Security (see SSI Application Process), estate planning, guardianship (see Guardianship/Estate Planning), and independent living (see Independent Living) as they coordinate their plans for their child’s future.

Childcare

Parents may also need to think about childcare (for further information see Finding Accessible Childcare). The caregiver may need to rely on respite care for help at home, or find child care that is able to work with the child with special needs. Parents should try to avoid last-minute changes. Even slight changes, such as a different pick up place or time, or a different caregiver, can upset a routine and create anxiety for the child. With some children, even as they grow into adult age, strict routines may always be needed.
Some children with special needs may also need supervised care as they get older. For example, a child who lives with a developmental and/or physical disability may always need supervision and help with the activities of daily living, such as bathing, dressing, eating, and communication.

Special Education

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 ensures individualized services to students with disabilities in public schools and inclusion as much as 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 (DOE)) that is overseen by a team of school representatives and the parents. The IEP is built by this team, and it is helpful to have both parents’ input to make choices on goals, placement, accommodations, assessments and other supports. For further information on an IEP, see Special Education.

Section 504 Accommodations

For other students whose disabilities may need minor support for their education, Section 504 of the Rehabilitation Act of 1973 provides eligible students with accommodations and modifications to help them in the school setting. Section 504 is a civil rights law that makes discrimination against people with disabilities illegal and ensures that the child with a disability has the same access to an education. Under this law, parents also take part in meetings where placement and services are decided. Once again, if possible, it works well if both parents are at these meetings, sharing in the choices 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 have school records that document their child’s disability and the IEP and/or 504 accommodations that have been designed to meet the needs of their child. School records can often be used to show why any changes from normal routines are appropriate or not. These records are about the child's disability, give recommendations for needed supports, and are useful in helping parents create a child-centered visitation plan.
Records should be reviewed for:
  • The individual assessment report that includes test scores for both intellectual functioning levels and academic performance levels
  • Behavioral information and approaches that address the needs of the child
  • Health records that document the disability and outline prescribed care
  • The current IEP
  • Psychological reports, speech evaluations, assistive technology evaluations, functional behavioral evaluations, occupational therapy evaluations, and physical therapy evaluations
It is vital for 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 work out disagreements. The decree helps guide the decision-making process so needed services are not delayed.

Health Care Decisions

For parents of children with disabilities, treatments and therapies can be part of the daily routine. Parents must agree on a plan for how and when their child will get needed care, and how they will make decisions about their child’s health. For children with conditions such as cerebral palsy, physical impairment, seizures, and other serious health issues, decisions include ongoing medical care, medication management, appointments with primary care clinicians and specialists to check and treat conditions, and consent to procedures.
The divorce decree will need careful drafting about medical decisions. If needed health care services are frequent and involve extra cost, agreements will need to be made about how each parent is involved in decision-making, how information is shared when medical care is recommended by the child's clinician, how decisions are made about procedures, and responsibilities for costs. A decree may also address counseling, physical therapy, speech therapy, occupational therapy, or other care.

Social and Recreational Opportunities

Children with special needs should be given the same opportunities as children without special needs, such as school, social and recreational choices, and independence. Families often struggle with barriers that may leave out a child with disabilities from school and social settings. Social activities and recreation are of great value for children with special needs. Parents can work together to find the right activities for their child. Many cities and counties offer specialized structured activities (see Recreation Activities) for children with disabilities such as softball, skiing, art classes, swimming, and camps. Taking the child to these activities can be shared, so that each parent can enjoy these times with their child. Parents should also work together to keep up the schedule and transportation for social and recreational activities. Sometimes social and recreational schedules mean parents need to be flexible with visitation so that the child can be there on a regular basis.

Transition to Adulthood

As children mature, parents will need to work together to explore choices after high school, like school and training, work, independent living, and other goals for their child’s future (see After High School Options). Many students with disabilities are successful in continuing their education after high school graduation. However, some students will need support throughout their life. All students can use help from both parents as they make the next step into adulthood (see Transition to Adulthood).

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.

A Guide to the Individualized Education Program (DOE)
Gives a detailed guide to the IEP process, along with information about special education and IEPs; U.S. Department of Education.

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

Authors & Reviewers

Last update/revision: January 2019
Current Authors and Reviewers:
Author: Tina Persels
Contributing Authors: Shena McAuliffe, MFA
Gina Pola-Money