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Divorce With Special Needs Child, Legal Considerations

By George Khoury, Esq. on January 05, 2017 | Last updated on March 21, 2019

Divorce is difficult and emotional. More so if there are children. Even more so if a child has special needs related to a disability. Even though the divorce may be more complex, a court will ask the same question for a special needs child as they would for any other child: what is in the best interest of the child?

When a couple that has a special needs child decides to divorce, there are legal considerations that relate to the on-going care of the child that should not be ignored. Careful planning on the part of the parents is critical in crafting a custody agreement that works not only for their child, but also for them.

Parents need to carefully consider how they are going to share both legal and physical custody. As a preliminary matter, deciding who will be the final decision maker regarding personal, legal and medical decisions is usually impossible.

Agreeing on the process by which disputes will be amicably resolved should be part of any parenting agreement that shares legal custody. Additionally, parents should seek to create an agreement in principal that can guide each parent if decisions must be made on the fly. Lastly, when important decisions are made, it is important that both parents be made aware of the decision that was made in a timely fashion (so that if there is a dispute, it can be timely remedied).

When it comes to sharing physical custody, parents need to consider whether their child will be overly affected by being shuffled back and forth between homes, and adjust accordingly. Furthermore, if the parent that moves out of the family home is unable to find a place to live that can accommodate the child's disability, then the agreement should provide for visitation until, and revisiting physical custody when, the parent secures a new residence.

Most importantly, parents should remember that the best interest of their child will be best served if their agreement is flexible not just to their child's evolving and changing needs, but also their own. If the disability relates to mental competency, parents may want to consider including provisions for sharing custody into their child's adult years.

Special Costs

The costs of medical care, as well as any special needs equipment, would likely be handled in the same way as they would be for any child. Sometimes parents split these costs 50/50, or 60/40, or sometimes the more financially well-off parent agrees to cover these.

Regardless, in many situations, a special needs child will need additional care beyond what is provided by health insurance. Anticipating, and addressing, this need, and the cost associated with it, can help prevent future disputes. An example of this could be a child needing to upgrade their motorized wheelchair from one that is suitable for a child, to one that is suitable for a teenager or adult. While insurance may cover the cost for a basic model when the child reaches a certain age or size, a parent can pay more for their child to receive a premium model.

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