Custody agreements are challenging to resolve in any divorce, but parents with special needs children have additional issues that will need to be addressed throughout their lives. Depending on the type and degree of disability, a special needs child has on-going medical and educational needs that require considerable time and attention from the parents. In addition, special needs children typically need guidance and financial support from their parents for the rest of their lives. These are critical factors to consider when deciding on whether to have joint or shared custody, or assign one parent to be the primary residential custodian.
Because disabled children tend to need more structure and routine than non-disabled children, one parent is usually awarded primary custody while the other parent retains legal custody and visitation rights. This means that the non-custodian has the right to participate in making decisions on the child's behalf. With special needs children, most of these decisions center around education programs and medical treatments. It's extremely important that the judgment of divorce specify the rights of each parent, e.g., consent from both parents is required to change the child's special education program. In addition to protecting the parents' legal rights, these terms dictate how the the school district should proceed, and whether they should refer primarily to the custodial parent, or communicate equally with both parents.
The divorce judgment should also specify arrangements for the child's adult years, since disabled children are legally adults at the age of 18. The courts, however, recognize that such a child's ability to earn wages, make legal and/or medical decisions, etc., would be considerably limited. In most cases, one parent would need to become the child's legal guardian in order to advocate for his or her best interests. If the parents cannot agree on who should become the guardian, they will need to petition the court for guardianship.
Parents must also make arrangements for how child support will be paid beyond the age of 18. Low income adults with a permanent disability are eligible to receive Supplemental Security Income (SSI), which is administered by the Social Security Administration. An individual may be ineligible for these benefits if they are still receiving child support, which is why it's important to include terms for a special needs trust in the divorce agreement. These trusts allow money to be set aside for disabled individuals, while still allowing them to receive government benefits under the Social Security and Medicaid programs.
While these are the basic issues that parents of special needs children need to address, there may be other concerns that need to be resolved depending on the child's needs and interests. Protecting the life-long needs of a disabled child while staying in compliance with the law requires careful planning with an experienced family law attorney. For assistance with custody and child support arrangements for your special needs child, please speak with the attorneys of Villani & DeLuca, P.C.