Divorce and special needs children: Two issues to consider

The standard parenting plans and custody agreements may not be best for children with special needs.

Divorce is a difficult process for any family, but families with special needs children can face unique issues. Using standard parenting plans and custody arrangements may not work as well in these situations. As a result, having an understanding of state laws and two of the common issues that can arise in these situations can help lead to a more realistic plan.

Divorce and Massachusetts state law

Massachusetts, like many states, uses the best interest of the child standard when making child custody determinations. This standard allows the court to review a number of factors when determining which parent gets primary custody of the child. These factors can include:

  • If old enough and mature enough, the wishes of the child
  • The child’s interaction and relationship with the parents, siblings and any other person who could significantly affect the child’s best interest
  • The mental and physical health of all involved
  • Religious and cultural considerations

These are just a few of the many factors that are taken into consideration.

Divorce and special needs children

Although the legalities of the best interest of the child standard may be the same no matter what child the standard is applied to, the reality is quite different when special needs children are involved. More families are navigating these situations, attempting to ensure that a special need’s child "best interests" is properly considered. This prompted the American Bar Association to publish an article addressing the issue. The piece touched on a number of concerns, but the two primary takeaways involve:

  • Transition. Typical custody or visitation arrangements often result in the child splitting time with each parent. When a child with a disability is involved, it may be best to reduce the frequency of transitions between homes. One potential resolution is to structure visits for longer periods of time. Instead of having a child spend Monday and Tuesday with one parent, Wednesday and Thursday with the other and splitting weekends between the two, it may be easier on the child to spend two weeks with one parent and the next two weeks with the other. Determining the right balance will depend on each individual child and his or her needs.
  • Education. Children with disabilities that attend school may use an Individual Education Plan (IEP) and other resources. It can be helpful to have a copy of this IEP available to refer to when structuring the child custody arrangement to better ensure his or her needs are fully addressed.

These are just two of the more common issues that need to be addressed in these situations. Additional issues can include how healthcare decisions will be made and financial issues. Special needs children often require additional resources compared to their counterparts. In some cases, it is helpful to address these needs within the child custody and support arrangements.

Due to the many, unique issues that can arise with a divorce when special needs children are present; it is wise to seek the counsel of a lawyer that has experience handling divorce cases involving special needs children.