Divorce is a complicated process when minor children are involved. When the minor children involved in a divorce have special needs, this can often cause further complications. Minor children may have a variety of needs that are different than their peers, such as physical, emotional or educational special needs. As a result, Allocation Judgments and Parenting Plans need to contemplate the unique issues which may arise when a divorce case involves children with special needs.
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Divorce & Children with Special Needs – Key Concerns
1. Determination of Parental Responsibilities
One of the biggest issues which arise in cases involving children with special needs relates to the allocation of parental responsibilities. Often times children with special needs will have additional medical or healthcare appointments or therapies, which impacts medical decision making in a substantial way. If the child needs a new provider, the parties need a plan as to how one will be selected. If there are elective therapies that are recommended for a minor child, the parties have to determine whether or not they will engage in the same. As such, medical decision making, or the allocation of parental responsibilities for medical decisions, must be clearly established in an Allocation Judgment.
2. Medical Decision Making
In determining which parent will be awarded the medical allocation of parental responsibilities or if both parents will share this responsibility, the Court will often look at what the “status quo” has been and if it is working.
For instance, if two parents have always attended all medical appointments, chosen new providers, and generally agreed on the treatment plans for their special needs child, those parents would be good candidates to share major decision making/allocation of parental responsibilities for a minor child’s medical decisions.
If, conversely, the parents have historically been unable to agree on major medical decisions, disagreed with providers, disagreed with recommendations, and could not come to an agreement on many of these issues, one of the parents may be allocated sole parental responsibilities as to medical decisions. This is similar to the assessment for a child who does not have special needs. The goal of the Court is to do what serves a minor child’s best interests and to ensure they receive the care they need in a timely manner. Entering an order that would not provide this, for any child, would not serve that child’s best interests.
3. Education Decision Making
Similarly, many children with special needs as to their education require special plans with their school for how they will be educated and what accommodations they will be permitted. They may submit to a neuropsychiatric evaluation which has very specific recommendations. Parents often meet with the school to formulate a plan for their child. If the parents do not agree on major educational decisions or cannot be in the same room together without argument, they are not likely to have joint decisions as to education. One of them is likely going to be awarded the decision-making ability regarding that child’s education.
The provisions regarding parental responsibilities need to be clear. There is an element of anticipation of future issues which needs to be considered when these orders are drafted to avoid future problems occurring. If historically, one parent has handled these types of decisions and the parties do not communicate well, but the child is thriving, the Court may not disturb that status quo of one parent handling the decisions going forward. Changing the scenario and awarding joint decision-making could set the parties up for litigation and cause delays for the child to receive the services and treatments they need, which is not what the Court wants.
4. Ongoing Support from Parents
Additionally, depending on the type of needs the child has, they could qualify for child-like support into their majority from both parents. There is a statute in Illinois that contemplates situations such as these and where support may be set beyond the child reaching age 18 and beyond, but it depends on how severe the child’s needs are and what the needs are.
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Estate Planning and Divorce
It is likewise important to consider estate planning and what would happen in the event of the untimely death of one or both parents when there is a special needs child. Again, this is not unique to a divorcing family or separating parents; usually, parents of children with more substantial special needs have considered this previously. If they have not, during the divorce is a good time to put together an estate plan, including a special needs trust. It is best to consult with an estate planning attorney who understands the laws in place for special needs children, especially as it relates to social security and the ability to receive the same, as certain assets being in the name of a special needs child could impact their ability to receive social security or disability later in life.
Life Insurance Policies
When it is possible for one or both parents to obtain a life insurance policy, it is always a good idea to put that important protection in place. A beneficiary can be named as trustee on behalf of the minor child so that it doesn’t become necessary to open a probate estate if the person with the life insurance policy passes away while the child is still a minor. This is something to discuss with your estate planning attorney, and setting up the trust in which the life insurance policy will be deposited in is likewise important to consider.
Seeking Professional Support
All children who have parents who separate or go through a divorce may find themselves in a situation where they need someone to talk to or treat them, including children with special needs. Employing the proper experts and obtaining the proper resources to assist your child with this large life transition is extremely beneficial.
Additionally, in the event that you and your ex have a difficult time communicating or co-parenting, it may be a good idea to consider the appointment of someone who can assist. Some of these resources include parenting coaches/co-parenting therapists who can work with both of you together to work on effectively communicating, or a parenting coordinator may be appointed to help resolve disputes and act as a referee for more minor issues. Where issues are extremely contested, and the divorce case leads to litigation, you can expect that the Court will likely appoint a Child Representative or a Guardian Ad Litem Litem to work in the best interests of the minor child or children in your case.
