Divorce & Special Needs Children

Unique Considerations in Divorces Involving Special Needs Children

Divorce is a complex process, but when a special needs child is involved, certain aspects of the divorce can become more complicated, such as child support and child custody. It is important that courts and families be aware of the unique concerns and needs of the child. Below, we discuss some of the important considerations parents and their legal counsel should consider.

Parenting Plan Considerations

In creating a parenting plan, all parents consider their child’s unique needs and situation. Parents of children with special needs will have additional considerations when drafting a parenting plan and should consider the following factors:

  • Stability and routines. Children with special needs often thrive on stability and routines. Frequent transitions between parents' homes can be disruptive, so parents may consider minimizing the number of transitions and ensuring consistency in routines at each household. For instance, if parents still wish to divide custody equally, they may consider birdnesting, which involves the parents rotating between houses while the child remains in the nest (the home). This co-parenting method eliminates the need for the child to change locations and drop-offs and places that burden on the parents. You should also ask yourselves what type of custody schedule would work best for your child and which parent is equipped to handle the child’s current care needs.
  • Physical custody concerns. While you should always consider which parent has a support system in the area and who currently handles certain parental responsibilities, you should also consider whose home is equipped for your child’s specific needs. For instance, if your child needs certain accommodations or healthcare equipment, that can impact which party gets primary physical custody. If your home has been renovated with your child’s needs in mind, the parent who gets primary custody may retain ownership of the marital home.
  • Specialized care needs. Parents of children with special needs know how important it is to help their child receive services and care for their developmental needs, and the parenting plan needs to address how medical appointments, therapies, and any specialized care will be handled. Will parents share transportation responsibilities? How will communication regarding treatment plans and progress be maintained?
  • Communication and cooperation. Effective communication and cooperation between parents are crucial. Disagreements disrupt the child's environment and can be emotionally taxing. How will communication be handled? What will the communication methods be for health concerns, appointments, and other shared information?

The Different Needs of Siblings

During a divorce, siblings of a special needs child may feel neglected or overlooked. Their needs are equally important, and the parenting plan should consider individualized attention. Schedule dedicated time for each child with each parent. This allows siblings to have their emotional needs met and build a strong relationship with both parents.

It is also important for parents to avoid placing the burden of childcare or emotional support on their kids. While there may be exceptions, like situations where siblings can offer some age-appropriate assistance, these should be carefully managed.

The focus should remain on each child processing their own emotions and adjusting to the new family dynamic. Parents should seek external support systems, like babysitters, therapists, or family members, to ensure each child's needs are met and their sibling bond remains one of companionship, not co-parenting.

Increased Costs

Raising a special needs child comes with significant financial costs because of costs associated with their medical care, therapy, medications, and specialized equipment. In negotiating child support payments, parents should consider the increased costs associated with their child’s needs. You can benefit from drafting an outline of the current costs of your child’s care and enlisting the help of healthcare experts who can give their expert testimony.

Parents should also work to ensure continuous health insurance coverage for the child. New York law mandates that parents provide for their child’s well-being and welfare, which includes providing them with healthcare coverage. Parents can agree on who will pay medical and dental expenses and handle health insurance.

If you are unable to agree, the court will review each party’s finances and make a determination, which could:

  • Require the non-custodial parent to add their child to their employer-provided plan and the other parent to help with co-pays and deductibles.
  • Require either parent to obtain affordable private healthcare coverage.
  • Require one parent to cover all the costs (i.e. the premiums, co-pays, deductibles, and non-covered expenses).
  • Require both parents to add their child to their employer-provided healthcare plan and designate one party as primary and the other as secondary, which would mean the secondary plan would cover the outstanding payments not covered by the first plan.

Importance of Looking to the Future

New York Domestic Relations § 240-d requires parents of developmentally disabled individuals to financially support that person until they are 26 years old. This law recognizes that the needs of a special needs child extend beyond the age of 18.

While this law does offer more longevity in terms of financial support, divorcing parents should also consider what they may need to do to protect their child financially in the future (in their divorce agreement and in their estate planning). For instance, will you need to start a Special Needs Trust, and who will be responsible for funding/adding assets to the trust?

Compassionate Counsel Is a Call Away: (718) 550-3024

The team at Arnel Law Firm is experienced in helping parents who have special needs children navigate their custody cases. Our attorneys understand that the needs of the child and family can require unique accommodations and solutions, and we can work with you to protect your rights and the child’s best interest during case negotiations or litigation.

Contact us today to schedule your case consultation.