Issues Facing Parents With a Special Needs Child in Divorce

A child with down syndrome playing with her mother who is navigating through a divorce.

One of the primary concerns of many parents going through a divorce is how the divorce may affect and impact their child or children. Even more concerning for parents is how, and whether, the parents will be able to work together during and after divorce in order to co-parent effectively. When your child has special needs, such as autism, a developmental issue, or ADHD, it is even more crucial to plan ahead to ensure that their specific and individual needs are met.

Divorce Rates of Parents with a Special Needs Child

Having a child with special needs doesn’t cause divorce, but it can put strain upon an already fragile marriage. Unfortunately, the reality is that any serious health issue within a family can put additional stress upon a family. Medical or developmental conditions often require costly therapies, and a child’s individual needs may be such that one parent cannot reliably work outside the home because the child requires constant care and attention. The combination of increased costs and decreased income creates financial stress that puts unrelenting pressure upon a marriage.

In addition, one or both parents may be so consumed with meeting the child’s specialized needs that the parent doesn't have time or energy to devote to the marital relationship. In some marriages, one parent focuses on caregiving, while the other one focuses upon work and the need to support the family financially. Both may feel overwhelmed by the pressures of their respective roles, and both may feel unsupported, isolated and/or misunderstood by the other.

All of these factors may contribute to the divorce rate among special needs parents being somewhat higher than the average. However, a frequently-cited statistic that the divorce rate of parents with a child who has autism is 80% has been debunked.

Unique Divorce Issues with Special Needs Children

If you are a parent with a special needs child, and you find yourself facing divorce, you are not alone. But you should understand that some issues, such as child custody and child access and child support, will be more complex because of your child’s needs.

Unique Child Custody Issues

Often times during a divorce, parents are able to reach a cooperative agreement regarding issues related to custody and visitation. However, if parents cannot agree upon these child related issues, the court will decide them.

In Maryland, Virginia, and the District of Columbia, courts decide child custody issues based upon “the best interests of the child” standard. This means that the judge will make their child custody decision based upon what arrangements are found to be in the best interests of the child. Joint physical and legal custody is often considered by the courts because it is often thought to be beneficial for a child to have strong relationships with both parents. Having both parents involved in major decisions about the child, and having a child spend substantial time with both parents, is often a good thing.

However, joint custody situations may not always be best for any child depending upon the particular circumstance and can even be more fraught with difficulty when a child has special needs. Many special needs children thrive on routine and predictability. Frequent moves back and forth between homes can be very stressful, to say nothing of the different rules and schedules that occur at each parent’s respective home. Furthermore, if parents have different ideas about the severity of the child’s issues or the type of treatment, schooling, or therapy needed to support the child, co-parenting can become even more difficult. Friction occurring between parents can increase the stress on a sensitive child with special needs.

It is ideal if you and your spouse can reach a divorce settlement agreement that puts your child’s needs first and allows you to co-parent effectively. However, and in such cases, it is critical to prioritize what is best for your child over the desire to reach a compromise.

If you must go before a judge to decide the issue of custody, it may be necessary to help educate your judge on the issues of special needs children in general and the unique needs of your child in particular. It may be helpful to have a child custody evaluation to provide the court the best possible information about your child’s individual needs.

Custody cases involving special needs children often need to be decided by a judge, because parents may be very far apart on what they believe is best for their child. A parent who has been the child’s primary caretaker may feel that the other parent doesn’t have enough experience or involvement taking care of the child to provide the support the child needs, or even that the child will not be safe or happy when alone with that parent. Conversely, a parent who has been the primary economic breadwinner, may feel that they should not be punished for working to provide for the family’s financial needs, thus allowing the other parent to be an at-home parent. While the court will consider what your respective contributions have been to the family in the past, the court will take a forward looking approach to consider what the child will need to thrive in the future - and which parent can provide both care and financial benefit to the child.

Whether you are the primary caretaker of your child, or the primary breadwinner in the family, it’s important to work with an attorney who is experienced not only in family law, but as a litigator, so that the judge in your case will hear a persuasive argument in favor of your position.

Child Support and Financial Issues in Divorce

In most states, child support ends when a child turns eighteen, or a little later, if the child is still in high school. However, many states, including Maryland, can permit support to continue longer for adult children with special needs.

Depending on the severity of a child’s issues, that child may need to receive government benefits such as Supplemental Security Income (SSI) as an adult. If awarded, child support payments are considered unearned income to an adult child, and could, unless properly handled, make the child ineligible for needed benefits. A supplemental needs trust (also known as a special needs trust) can help avoid that outcome.

Income that goes into a properly-drafted supplemental needs trust is not generally countable for purposes of eligibility for benefits. That’s important to consider, because the benefits special needs adults receive may be enough to provide for their most basic needs, but are usually not sufficient for much more. Distributions from a special needs trust coupled with SSI and other benefits can give your child better quality of life even after divorce.

Navigating Divorce with a Special Needs Child

As the parent of a child with special needs, you are used to advocating on behalf of your child. That will continue during your divorce, but you don’t have to fight for your child alone. Working with an experienced family law litigator can help ensure that you and your child have what you need to move forward from your divorce into a stable future. To learn more about divorcing with a special needs child, contact Strickler, Platnick & Hatfield to schedule a consultation.

Categories: Divorce