Things You Must Know About Divorce and Children with Special Needs
Having special needs children leads to challenges for parents who must obtain proper medical and therapeutic care, special education, and other services while constantly advocating for their child to be included, appreciated, and treated fairly.
When parents of special needs children divorce, their separation often disrupts a complex routine structured to meet their child’s needs. Separation and divorce can cause emotional issues and confusion for the special needs child, as well as for other family members.
When a divorce involves a special needs child, there are a variety of legal and practical concerns for the parents to resolve related to child custody, visitation, child support, and other financial needs. While our clients frequently tell us that protecting their kids is paramount as they divorce, these are uncharted waters for even the most loving parents.
At Charles R. Ullman & Associates, we work hard to give parents of special needs children the guidance and resources they need to ensure their children’s needs continue to be met during and following the divorce. As you begin to navigate this difficult time in your family’s life, you can depend on the legal team at Charles R. Ullman & Associates for the compassion, knowledge, and experience it takes to meet your goals. Charles R. Ullman is recognized by the North Carolina State Bar as a Board-Certified Specialist in Family Law. He has helped many special needs parents resolve child custody and support issues.
Reach out to us today at (919) 263-2873 or through our online contact form to schedule a consultation at our office in the historic Wyatt House in downtown Raleigh. We serve clients in Raleigh, Cary, and throughout Wake County.
Child Custody When Divorce Involves a Special Needs Child
Divorcing parents should work toward a child custody agreement that provides for the best ongoing emotional and financial support for their special needs child. In the absence of an agreement, North Carolina law requires the presiding family law judge to decide child custody matters according to the best interests of the child.
A judge has wide discretion but will typically take into account how the family unit has operated during the course of the marriage and each parent’s ability to take care of the child for long or short periods of time on their own.
It can be difficult for family law judges to understand the multiple issues parents face as they raise a special needs child. This is more reason for you and your spouse to strive to reach an agreement on custody and support of your child. In a contentious divorce, each side may produce medical records and doctors’ testimony to support their arguments about custody, visitation, and support. This increases the costs, stress, and rancor of a divorce and may not address what is best for the child.
Child custody consists of:
- Physical custody – living with the child
- Legal custody – authority to make decisions about the child’s life.
Typically, a child lives with one parent and the other has visitation rights or divorced parents split physical custody, with a schedule established for when the child stays in one household or the other. Regularly moving back and forth between households is not always practical for the special needs child, particularly children diagnosed with autism, who depend on routine and familiarity with their surroundings. It may be difficult for parents of children who depend on adaptive equipment to constantly pack up and move equipment or maintain duplicate sets of equipment in each household.
Decisions about primary physical custody of a special needs child should be based on each parent’s ability to respond when the child needs medical care, as required by the nature of their disabilities.
However, the benefits of regular, ongoing contact with both parents after divorce should not be overlooked, assuming both parents can meet the child’s needs. Many children can adapt, regardless of the nature of the parents’ differences. The long-term benefit of growing up with both parents in their life typically outweighs the burden of repeated change.
As various arguments are considered during separation agreement negotiations, the goal should be an arrangement that is practical. It should allow both parents to maintain a meaningful and consistent relationship with their child but above all ensure that the child’s needs will be met.
One parent may assume sole legal custody and be fully in charge of decisions about the child’s medical care, therapy, and education, or the parents may have joint legal custody. Parents with an amicable relationship should approach medical care and arrangements for school as a team. That may require the ability to come to an agreement on some tough decisions.
If a special needs child’s parents are not on agreeable terms, the parent who can provide evidence that they have been the child’s primary caregiver in the past may persuade a judge to award them sole legal custody.
Additional provisions in North Carolina law authorize the court to award custody of a child who has reached the age of majority and who is mentally or physically incapable of supporting themself. This allows a parent to be awarded custody of an adult disabled child as long as the child has not been declared incompetent and had a guardian appointed.
If an adult child has been found to be incompetent, a parent may petition the court for legal guardianship of their adult child.
Child Support for a Child with Special Needs
Child support is money paid to house, feed, clothe, educate and ensure the health and well-being of a child or children. Under a separation agreement and final divorce order, one parent generally makes specified child support payments to the other.
Child support payments made when parents have a combined gross income of $300,000 or less per year are based on the North Carolina Child Support Guidelines. These rules establish uniform presumptive guidelines for determining the child support obligations of parents. Child support calculations are based on each parent’s gross monthly income, the child’s portion of the monthly health insurance premium, work-related childcare costs, and any extraordinary expenses for children, including special education needs.
When a child has special needs and the amount of support due under the guidelines would not meet the reasonable needs of the child, then child support is determined on a case-by-case basis. Your attorney can help you negotiate such extra expenses of a child with special needs as the costs of:
- Specialty medical care and personal services
- Adaptive equipment purchases or rental and maintenance
- Nonprescription treatments, vitamins, and nutritional needs
- Consumable medical and personal care materials
- Transportation services
- Elevated childcare charges
- Paid respite care for the custodial parent.
Further, if caring for the child is a full-time job for the custodial parent, the separation agreement should include appropriate spousal support payments (alimony).
Child support obligations typically end when a child turns 18. But a special needs child may need financial support as an adult. The parents could contract with one another to provide continued support. This obligation must be considered in terms of financial ability, which may change with age and the child’s potential reliance on government benefits.
Ongoing support for an adult with special needs must be structured so it doesn’t reduce or eliminate your child’s ability to obtain Supplemental Security Income (SSI) and/or Medicaid, which are means-tested federal benefits that may be available upon turning 18 years old.
Parents also need to consider how their estate planning can protect eligibility for government entitlements. One approach is to establish a special needs trust, which puts income in the trust’s possession to spend for the benefit of the child.
Contact an N.C. Divorce Lawyer Who Cares
At Charles R. Ullman & Associates, our compassionate Raleigh family law attorneys have worked with numerous parents of special needs children to ensure the child’s needs are carefully considered as the parents go through a divorce. We know what a difficult time this can be. Our team is here to help. Your divorce attorney from Charles R. Ullman & Associates will ask you to walk through a day in the life of caring for your child so we have a complete understanding of your child’s special needs.
Our firm includes a Certified Specialist in Family Law and skilled divorce attorneys who have handled all aspects of divorce, from simple divorces to the most complex litigation. We also consult with multiple doctors and specialists in the Raleigh-Durham-Chapel Hill Triangle as needed to better understand childhood disabilities and the care they require.