Many families have a child diagnosed with Autism, Autism Spectrum Disorder or Asperger’s Syndrome; Down’s Syndrome; ADHD; diseases or birth defects that impair a child’s ability to move, speak, and hear or to interact with others; learning disorders; brain injuries; or psychiatric disorders. When going through a custody or divorce proceeding, parents of a special needs child may face difficult challenges in dealing with the other parent and in making sure that the child receives all of the services that child needs in order to thrive.
During a custody or divorce proceeding, it is important for parents who have a special needs child to plan for the payment of any extraordinary expenses for services that the child may need. Some important services for special needs children may not be covered by regular health insurance plans. Many families must plan for paying for different types of therapy (such as speech, occupational, play or physical therapy), dieticians, naturopathic doctors, food for special diets, and for non-prescription items (such as a modified vehicle to transport the child) that are needed to accommodate the special needs child. In addition, some parents believe that it is in the child’s best interests to attend a private school or private special education program in order to make sure that the child’s special needs are addressed.
The Oregon Child Support Guidelines do not automatically take into account any extraordinary expenses for a special needs child. A parent seeking support for a special needs child will have to present evidence of the child’s extraordinary expenses to the court, and will have to ask for such expenses to be apportioned between both parents in some fashion.
One way to apportion such expenses is to request a rebuttal from the Oregon Child Support Guidelines. When a parent requests a rebuttal, that parent is asking the court to deviate from the presumptively correct child support award in order to account for special financial considerations in that case. Another way to apportion payment of extraordinary expenses for a special needs child is for parents to each be ordered to pay for a certain percentage or amount of the expenses.
Special Issues Relating to Custody:
In some cases, parents have strong disagreements about what therapies or treatments a child with special needs should receive. These disagreements about decision making for the child with special needs may lead to litigation regarding which parent should have custody and the right to make decisions for the child. It may also be difficult for some parents to agree on how to communicate about the child’s needs, and it may be difficult for parents to work together to make sure that there is consistency between households in diet, schedule and/or therapies for the child.
If parents cannot jointly agree on how important decisions should be made for a child with special needs, the parents may need to obtain a custody evaluation in order to receive advice from a professional. An evaluator is either appointed through a stipulated agreement by both parties, or by order of the court. The evaluator can obtain information from the child’s medical and therapeutic providers in order to determine the status of the child’s condition, and the child’s future needs. During the evaluation, the evaluator will usually meet with both parents, with the child, and with other individuals living in each parent’s household. If the child has an Individualized Education Program (I.E.P.) through the child’s school, the evaluator will usually review the I.E.P. documents, and talk to special education providers who have worked with the child. The evaluator will also talk to other individuals who work with the parties’ child, and will talk to or review information from various individuals who know each parent.
At the end of the evaluation the evaluator will make recommendations regarding which parent should have custody, and what parenting time plan is in the best interests of the parties’ child. In addition, the evaluator can provide information regarding what treatments or therapies the child should receive and what the evaluator has been able to learn regarding the likely prognosis for the child.
Seeking Help and Legal Advice.
Regardless of the diagnosis of a special needs child, each child is unique. Children with the same diagnosis often face very different challenges. It is important that each child’s unique needs and challenges are planned for during custody or divorce proceedings.
If you are the parent of a child with special needs and if you are planning for or involved in custody or divorce proceedings, you may want to consult with a family law attorney who can advise you how to best protect and plan for the care of your child. If you incur extraordinary expenses to care for your special needs child, an attorney can assist you in gathering necessary information to make sure that the Court is fully informed of the special financial issues relevant to your case. If you decide that you may need to obtain a custody evaluation, you may want to seek advice from a professional on how to prepare for an evaluation and on what evaluators might be best for your case.
Sign up to receive a 5-part series of useful information and advice about child custody law.