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by Mindy Stannard, Senior Attorney, McKinley Irvin Family Law
For parents of a special-needs kid, getting divorced is an emotionally fraught process that requires a high degree of advocacy to ensure that the needs of the child are met. I recently talked with a former client, “John,” who has a child with autism.
In John’s case, not only were there legal complexities to deal with relating to the well-being of his child, but also differing views between him and his former spouse on what was in their child’s best interests. John has been through multiple court proceedings regarding child support, legal custody of his child and the parenting time schedule.
In family law, cases involving a child with autism or other physical, mental and/or developmental disabilities often involve parents who are “emotionally wrecked,” as John explained to me. Many parents are dealing with grief at learning they have a child with special needs. Or parents have different views on what is in the best interests of their child, in terms of treatment or therapies. This grief and anger, along with parenting disagreements, can often lead to the parents separating or getting a divorce.
Parents of a special-needs child who divorce have to deal with deciding who becomes the primary caregiver, who will have legal custody (decision-making authority) for the child, how medical and educational decisions will be made, how the parents will schedule their time with the child and how any related costs (caretaking, therapies, medical bills, etc.) will be paid for.
Determining custody of a special-needs child
In Oregon, the parent with legal custody of a child makes decisions relating to the primary residence, religious training, education and pre-planned medical care for that child. Parents can only have joint custody of a child in Oregon if they agree to joint custody. If either parent does not agree to share joint custody, then one parent will have sole custody of the child.
It is not uncommon for the parents of children with special needs to disagree about what medical providers should treat the child, therapies the child should receive and medical treatments the child should undergo.
When parents do not agree on joint custody or which parent should have sole custody of a child with special needs, they should consult with an attorney about options for hiring a custody evaluator or parenting coordinator, or for working with other experts to obtain recommendations as to which parent is best suited to have custody of and make major decisions for the child. These professional recommendations can help you and your co-parent come to an agreement on custody, or can be used in a trial as expert testimony.
Establishing a parenting time schedule
In divorce or custody cases, a parenting time plan needs to be created, outlining what time each parent spends with the child. A parenting plan should be specific and should include provisions relating to transportation for parenting time exchanges, holiday parenting time, vacation and/or summer parenting time and other special provisions relating to each parent’s responsibilities for the child.
Children with special needs may have multiple appointments with therapists, tutors and/or medical providers on a monthly or weekly basis. Some children with special needs are best suited to a strict routine, and to being in one household the majority of the time. It may be extremely important for a child with special needs to have nearly identical schedules when that child is in each parent’s home. Many children with special needs have difficulties dealing with transitions, and special care should be paid to how exchanges of the child will be handled by the parents in order to limit stress and disruption to the child during parenting time exchanges.
Family law attorneys working with families in this situation need to spend time learning about the child’s special needs by speaking with parents and gathering and reviewing educational, therapy and medical records for the child. Evidence of the ability of each parent to meet the child’s needs and to understand the child’s needs should be gathered and presented to the court if the case proceeds to trial.
Calculating child support to include extra expenses
In Oregon, child support is typically calculated pursuant to the Oregon child support guidelines. The child support guidelines, however, do not automatically provide for the extra expenses a parent incurs for a child with special needs.
In a divorce or custody proceeding, a parent who has a child with special needs must provide a detailed list of extraordinary expenses that may be incurred on behalf of that child for therapy, uninsured medical expenses, special diets or items that are needed for their child. It is important to seek advice and guidance from an attorney to determine if it will be possible to argue for additional child support because of the extra costs incurred for a child with special needs, beyond the amount of child support calculated under the standard Oregon child support guidelines.
Child support usually continues until the child turns 18 or until the child turns 21 if that child meets certain requirements to be a “Child Attending School” under Oregon law —generally a full-time student earning passing grades. However, it is possible for a Court to award child support for a child past age 18 or 21 if that child has extraordinary needs due to a disability.
If a child will need an extraordinary amount of care as an adult, it is important for a parent to consult with an attorney and/or other professionals who specialize in helping families form long-term plans about future financial support for that child. A parent of a child with special needs should be informed as to how spousal support payments, child support payments or funds deposited in trust (or savings) for that child may impact the child’s eligibility for state and federal assistance (such as Medicaid and SSDI).
Spousal support considerations for caretakers
A parent’s ability to work outside of the home may be limited if that parent is providing care for a child with special needs. Information relating to the extraordinary care a child needs should be considered in any divorce case where one of the parents has taken on much of the caretaking for a child with special needs. A Court may consider a parent’s need to provide care to a child with special needs as a basis for awarding a greater amount of spousal support or a basis for awarding spousal support for a greater length of time.
Special issues relating to division of assets in divorce
Because a parent’s ability to earn income may be significantly impacted due to caretaking responsibilities for a special-needs child, there may be a basis for an argument that the parent who cares for the child the majority of the time should receive a greater share of the parties’ assets. This is due to the likelihood that that parent’s future ability to earn income or accrue retirement benefits may be limited because of the extraordinary care their child needs. There may also be a valid basis for arguing that it is best for the child that his/her primary caregiver keeps the marital home, to provide consistency and stability for the child.
Getting the help you need
It is a reality that the people who work in the legal system — attorneys, judges, etc. — may not fully understand or have experience with families that include a special-needs child. During his experiences with the family law court system, my client John felt there was a wide divergence of knowledge and understanding about autism within the judiciary and the professionals that he encountered. He felt that there are judges who “don’t get it.” While it is expensive and sometimes difficult to hire professionals to provide information to the Court regarding complex medical or psychological issues, it is often crucial to help you get the legal results you need for your special-needs child.
In my experience, a parent with a special-needs child should always seek out and work with professionals who have experience in situations like theirs; who can assist them with obtaining the best possible result for that parent and for their child.
What John found most useful was when he and his ex-spouse began working with a parenting coordinator who assisted them both with day-to-day parenting issues. The coordinator got to know the parents, the child and the issues where there was conflict. The coordinator assisted them in determining which parent would attend Individualized Education Program meetings for the child and manage therapy appointments, and in working out parenting time-schedule issues that came up from time to time. In John’s opinion, this parenting coordinator helped him and his former spouse learn to communicate better and helped avoid future litigation.
By working with professionals and attorneys who understand the challenges of caring for a child with special needs, parents can more easily navigate the additional complexities of a divorce or custody proceeding and attain the best outcome for you and your child.
Mindy Stannard is a family law attorney at the law firm of McKinley Irvin in Portland, Oregon. She represents people dealing with divorce, custody, paternity, child support and modification proceedings. She can be reached at 503.953.1032 or at http://www.mckinleyirvin-oregon.com.