I am the parent of a special needs child.
How is my case different from other divorce cases?
In some instances, the special needs of the child are such that the standard approach to divorce can be used without any negative results to the child. In these instances, it is fine to use the standard approach, but only after these factors have been carefully considered and evaluated. If, however, there are some aspects of the child’s special needs which must be taken into consideration in evaluating the divorce case and determining a fair and appropriate result, those issues should be brought up to your lawyer and to the judge.
If you do not know, for example, that transitions can be very difficult for persons with autism spectrum disorder, you would not understand why a visitation schedule in which the child sleeps in one parent’s house for a couple days and then the other parent’s house for a couple days would be a nightmare for this child. If the lawyers and judge do not realize that a 175 pound teenager with cerebral palsy may require special lifting and transfer equipment which is only located at one parent’s house, a parenting plan or visitation schedule which provides for extended visitation at the other parent’s house could result in the child having to spend days on end in bed because of the physical transfer logistics. Much more information on child custody, visitation and many other issues can be found on my website, www.PegiPrice.com.
In 2009, the American Bar Association published a book I wrote for judges and lawyers, which is an extensive reference book that teaches them about our special needs children and why our families’ cases need to be handled differently in divorce court, and provides them with the forms and other materials they need in order to properly handle our cases. I then wrote the book, Divorce and the Special Needs Child: A Guide for Parents, Jessica Kingsley Publishers (2010) to give parents the tools to work with their lawyers to get the best possible outcome.
Cookie cutter approach does not work
I have been a divorce lawyer for over 20 years. I am also the mother of a young man who was diagnosed with autism when he was three years old. At the time of the divorce, my son was six years old and still essentially nonverbal with autism. I was scared and worried about the future. The existing legal forms did not begin to address what my son needed. Thankfully, I had a cooperative spouse and a wise judge. They both gave me the freedom to write up special, nonstandard terms to make sure that the needs of my son were met fairly and appropriately. That divorce was over eight years ago. Since that time, I have helped many families all over the United States when they have gone through divorce with a special needs child. And now, I am helping you.
The first step in educating yourself is reading booklets like these as well as any other material you can get your hands on. You then need to make sure your lawyer becomes educated on your child’s special needs issues and how they are relevant in your divorce. Do the busy work for your lawyer. You know your child’s disability or special needs far better than your lawyer, and you’ll save yourself a lot of money on legal fees as well. Find a couple of really good articles that teach your lawyer the basics of your child’s disability. Don’t drown her in books and articles on the subject. Just give her two or three well-chosen articles. Go through the articles and on a separate piece of paper define the terminology that your lawyer might not know.
You also need to collect the necessary documents, reports, evaluations and all other papers that will help your lawyer prove the case to the judge. You need to prove by documents and, if possible, by expert testimony, what your child’s condition is, how that affects her life, exactly how your case needs to be treated differently and why.
Inform your lawyer
So let’s start with the evaluation of your child’s situation. Clearly, your child has a special need or you would not be reading this booklet. You need to determine if your child’s special need should be addressed during the divorce. If it should, it should be brought up immediately to your lawyer.
Tell your lawyer what your child’s special needs are, and walk your lawyer through “a day in the life" with your child. Explain your child’s likelihood for financial independence and living on his own as an adult. Tell your lawyer the likelihood of your child being able to graduate with a regular high school diploma, to complete college, have a marketable job skill or trade, pursue a career or profession. If your lawyer is unaware that your child may spend the rest of his life living with you or in a group home or other supported living environment, your lawyer cannot possibly get a fair and appropriate result for you and your family.
“Day in the Life"
Make sure your lawyer knows how much time and work caring for your child takes. Your lawyer needs to know how this impacts your ability to maintain part-time or full-time employment. Your lawyer also needs to know how this could affect your opportunity for career advancement in the future. Start keeping track of how many sick days your child has, doctor appointments, therapy visits and other activities. Get a calendar and just write these things on the days on which they occur. Do not read any editorial comments. Make sure you include start times and end times, time for driving and preparation time. Also note in your calendar which parent was present for each of these events, and which one transported the child. You should prepare for your lawyer “ a day in the life" for your typical day as well.
List your child’s expenses
List all the expenses involved in raising your child. Provide detail. As they say, “the devil is in the details." If your child has to be on a special nutritional regime because of PKU, celiac disease or some other reason, make sure the court realizes why his food costs are higher, and why you have to drive to specialty stores and spend more time preparing special food for your child. If your child needs special orthopedic devices which can be rapidly outgrown, don’t just list the cost for one of these items. When an item will be outgrown or have to be replaced several times, include this detail. Track all the medical costs – doctors, therapists, medications, supplements, specialized equipment, home environment modifications, co-pays, deductibles and all other medical costs. Get receipts and billing statements.
Visitation schedules and parenting plans
Have your lawyer give you a copy of the standard visitation schedules and parenting plans typically used by your local court. If there is not a standard plan, ask you lawyer to give you a copy of one that he would probably tailor to use in your case. Go through the schedule and plan, and write on a separate page the ways in which they need to be modified for your child’s special needs. For each modification, state the reason the modification is necessary, and the possible harm to or problems for your child if the modification is not made.
Have your lawyer explain to you in detail how child support is determined by your local court. Calculate whether the amount of child support you would receive under the usual approach would be enough for you to meet your child’s special needs. If not, ask your lawyer for a copy of materials which explain how the child support is usually calculated, and what factors are included in the calculation. You can then determination which expenses of your child are not being addressed, and request that they be added to the calculation, or be ordered to be paid in addition to the regular amount of child support.
Talk to your lawyer about spousal support, also known as maintenance or alimony. If you are the parent who will be the primary caregiver, do the math and determine if, with your income, child support and any maintenance your lawyer expects you to receive, you will be able to meet your needs and those of your special needs child. If not, determine how far short this total is, and work with your lawyer to build a case for increasing the amount of child support and/or maintenance to a fair and adequate amount.
Evaluate your case
After you have thoroughly addressed all of these factors, you will be able to determine which issues you need to present to the judge. Then you and your lawyer need to decide how you can build the strongest possible case for these issues. You might obtain documents yourself. You could sign releases for your lawyer to get records. Also, either your lawyer or your spouse’s lawyer can subpoena the records from the company that has the records – the pediatrician, the school district, your employer or the bank. However they are obtained, make sure you get a copy of all the records right away. Go through them meticulously and write a list of things you need to discuss with your lawyer. Your lawyer does not know the complete back story behind some of these items – but you might. Putting your heads together can make these documents more powerful for you at court.
Best interests of your child
The bottom line is this – If it is in the best interests of your child for her special needs to be addressed by the court when you are going through divorce, then they should be. The courts are required to act in the best interests of the children in these cases.
If your child’s special needs are properly taken care of during the divorce, you can beat the odds and not be one of the single mother/special needs child households in abject poverty within two years of divorce. If your child’s special needs are properly taken care of during the divorce, you are giving your child his greatest opportunity to be the best he can be in his life.
© Margaret “Pegi" Price 2009. All rights reserved .
Divorce / Separation Lawyer