Custody and Special Needs Children: What Parents Need to Know

Parenting a child with special needs presents unique challenges that can become even more complex during a divorce. It’s essential for parents to understand the legal and practical considerations in custody cases involving special needs children to support their child’s well-being. This article will explore key factors and legal aspects that parents need to consider.

Understanding Children with “Special Needs”

The spectrum of children with special needs is broad and wide. Special needs children can have learning, behavioral, or physical disabilities. Each child and each diagnosis will be different and will present their own challenges. Under Illinois law, a “disabled” individual is someone who has a physical or mental impairment that substantially limits a major life activity.

Legal Considerations for Special Needs Children

Unique challenges can arise when a child with special needs is at the center of a custody dispute.

Custody and Parenting Time

The biggest issue parents may encounter is which parent will retain custody of the special needs child. Today, we call this parenting time. Parents can share parenting time, but typically one parent will inevitably have more parenting time than the other.

Best Interest Factors

When there is a dispute between a couple of who the child should primarily live with, a judge will use the Best Interest Factors to determine the best outcome for the child.  This means that a judge will consider the child’s special needs or disability in determining custody.  A judge may take into consideration which parent has been the primary caretaker.  The judge also considers the child’s probability of adjusting to a new environment, any particular classes, therapies, services, or programs the child may not be able to access if the primary parent were changed.

Guardian Ad Litem (GAL)

A judge may appoint a guardian ad litem “GAL” to conduct an investigation to determine the best interests of the child. A GAL is a neutral attorney who represents the children in a divorce or parentage case. A GAL can interview the parents, the child, and investigate the child’s special needs to create a report for the judge.

Child Support Considerations

Parents of children with special needs or disabilities typically have a steady routine. It is not uncommon for one parent to handle the majority of caretaking. Typically, the parent with the majority of custody time will receive child support from the other parent. In Illinois, child support is calculated using a formula for both parents’ incomes and the number of overnights each parent has. Child support ends when a child turns 18 or graduates high school – whichever comes later. Additionally, parents typically share the cost of childcare expenses. These can include any additional educational, medical, or extracurricular fees and costs.

A child with special needs may require additional support after graduating high school. A judge can order parents to provide financial support forever to an adult child with special needs. Financial support for an adult child will be calculated differently than child support for a minor child. A judge will consider the income, assets, expenses, age, and health of parents of a child with special needs. A child’s resources, needs, and any government financial assistance will also be factors considered for the child support calculation.

750 ILCS 5/513.5 Support for a non-minor child with a disability.

(a) The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. The sums awarded may be paid to one of the parents, to a trust created by the parties for the benefit of the non-minor child with a disability, or irrevocably to a trust for a beneficiary with a disability, established by the parties and for the sole benefit of the non-minor child with a disability.

Developing a Special Needs Parenting Plan

Allocation of Parental Responsibilities

The goal of divorce or parentage negotiations for parents is a final agreement called Allocation of Parental Responsibilities, or a Parenting Plan for short. This document will state which parent has decision-making responsibilities over the major areas of a child’s life, such as education, medical, and extra-curricular activities. For parents of children with special needs, these decisions may need to be made more frequently, and even into adulthood. Parents should always consider how they will stay organized and communicate with each other effectively. An Illinois family law attorney can help you and your family identify the best practices for communication.

Parenting Time Schedule

The Parenting Plan will also indicate the parenting time for each party. A schedule will be made for regular, holiday, and school vacation visitation parenting time.

For parents of a child with special needs, this Parenting Plan is a great place to set forth the unique protocols, habits, and routines for the child.

Nesting Arrangements

Many children with special needs require a fixed routine and environment. Parents may consider a “nesting” co-parenting arrangement. This is when the children always stay in the marital residence, but the parents move back and forth from another residence. While this does not have to be a permanent solution, it is an option for parents to keep in mind if their special needs child requires more stability than others.

Parenting Coordinator

After a Parenting Plan is in place, parents should also consider seeking the help of a parenting coordinator moving forward. A parenting coordinator is a professional specialized in dispute resolution. This is a person you and the other parent can use to mediate certain disagreements without taking the issue all the way up to a judge. A parenting coordinator’s recommendation will be final unless a judge overturns it after one parent has appealed the recommendation.

Visit our Chicago Child Custody Lawyers services page to learn more

How to Prepare for a Custody Dispute

If you are preparing to file for divorce or a parentage case if you were never married, there are a few things you can do to set your family up for success.

Seek a Diagnosis Early

If you suspect your child has a disability, it is important to seek out a diagnosis as soon as possible for them. Not only for the well-being of your child’s development, but for the legal process, too. In Illinois, child support for an adult with disabilities will only be ordered if the disability arose while the child was eligible for support. This is a complicated way of saying while the child was a minor or eligible for support towards their college expenses.

750 ILCS 5/513.5 (a)

Support for a non-minor child with a disability.

An application for support for a non-minor disabled child may be made before or after the child has attained majority. Unless an application for educational expenses is made for a mentally or physically disabled child under Section 513, the disability that is the basis for the application for support must have arisen while the child was eligible for support under Section 505 or 513 of this Act.

Understand Your Child’s Needs

Equally important is knowing your child and being aware of their abilities. Being able to clearly express your child’s educational, social, and medical needs will help a judge understand your specific family’s situation to determine the best outcome for your family. When speaking to your lawyer, you don’t want to leave out anything important that could help your case or impact your child’s future.

Document Everything

Keep detailed records of your child’s needs, routines, and any special accommodations they require. This documentation will be invaluable during custody proceedings.

Facilitating the Best Outcomes for Your Special Needs Child

Custody disputes involving special needs children require tailored strategies, compassion, and deep understanding. Working with knowledgeable family law attorneys can help you navigate these complexities and develop a personalized plan that prioritizes your child’s well-being. Anderson Boback & Marshall offer compassionate and expert legal guidance tailored to the unique needs of special needs children. Empower your family’s future. Contact us to ensure your child receives the support and stability they deserve during this challenging time.