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Legal issues in divorce for special needs families

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Guest Contributor: Mr. Jeffrey Gottlieb, LA special needs attorney.

In a divorce case, the unique circumstances of parents with a special needs child can have a substantial impact upon the issues of spousal support, child support, physical custody, legal custody, and visitation.

The following six issues are vital concerns in regard to a special needs child that are to be considered in a divorce proceeding:

  • Physical Custody of the child (in whose home does the child primarily reside; who has the knowledge and experience to care for the child)
  • Legal Custody (who makes the major decisions on behalf of the child such as medical, IEP consent/dissent, legal representation)
  • Child Support (to what extent can child support be increased in recognition of the unique needs of a special needs child, such as private tutoring, respite)
  • Private educational/therapy expense for the child (who pays for clinical services not covered by insurance)
  • Health care/insurance expenses (who pays for deductibles, who must provide health insurance)
  • Spousal support (should the length of time for spousal support be extended to account for the inability to return to full time employment).

In order to prevail on the above issues, it is important to educate the judge about the unique requirements of a special needs child. The following are key fundamental information and factors to convey to the judge:

  • A disability such as autism often impacts a child’s ability to learn, communicate and socially interact
  • With the right therapy and support and early intervention special needs children have made significant improvement; many of them can become tax paying members of the community
  • Applied Behavioral Analysis (ABA) is currently one of the most effective interventions on behalf of autistic children, in addition to other therapies such as speech/language, physical therapy, occupational therapy, 1:1 aide support, educational therapy, and other effective treatments
  • A child often requires therapeutic services beyond those provided by a school district or a regional center and those services can be costly
  • Some school districts provide more or better services than another school district, which may influence the custodial parent’s decision on where to reside
  • The importance of a team effort on behalf of all family members to support therapy in home environments
  • Monitoring and responding to the child’s needs as they arise
  • Reduction in income if the custodial parent needs to to give up a career or other employment opportunities in order to care for his/her special needs child

A pivotal starting point in a divorce matter is typically the issue of custody. Physical custody determines where the child primarily resides. The following are example points in determining who should have primary custody, that is, which parent is in the best position to parentally supervise a special needs child on a daily basis:

  • Which parent took proactive steps to obtain a diagnosis and/or evaluation
  • Which parent has been supporting appropriate services
  • Has either parent been in a state of denial as to the child’s needs and/or diagnosis
  • Has either parent caused delays in obtaining services
  • History of parent(s) involvement in IEP/IPP meetings
  • History of parent(s) involvement in meeting with therapists
  • History of parent(s) being an advocate on behalf of the child
  • Issues in regard to the child’s ability to handle change (impacting, for example, visitation scheduling and residence)

Separately, legal custody is about who makes decisions in regard to the health, education and welfare of the child. Example decisions often involve medical care and choice of school setting. In the case of a special needs child, it is important that parents “speak” and advocate in one voice in regard to the important matters of therapies, services and placement. Fighting and posturing and denial among the parents will harm the child’s continued success. If the parents in a divorce proceeding cannot come to agreement as to these issues, then the court should be requested to determine which parent should have decision making in regard to the child.

Child support is an important matter for the court to decide. To explain it in the simplest manner, California family law courts use standard formulas (referred to as guidelines) for determining the amount of child support. The most important factors are each party’s respective income and the amount of time each parent spends with the child. However, as to child support and in the best interest of the child, the court can be requested to consider the unique unreimbursed requirements of caring for a special needs child, for example, the additional expenses of supplemental therapy or socialization programs (among other services that can facilitate a special needs child’s progress).

Divorce law becomes complicated anytime there is a dispute between the parties. It becomes even more complicated and challenging when parents cannot agree regarding what is in the best interest of a special needs child.

If engaging in a marital legal dispute regarding a special needs child, know what your child requires and have the witnesses, documentation and testimony to prove your case.

Guest Contributor:

Jeffrey A. Gottlieb, Esq.

Special Needs Attorney

Website: www.specialeducationattorneyatlaw.com

Phone: (949) 419-6196 and (562) 699-2412

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About Mr. Gottlieb

Jeffrey Gottlieb's law practice focuses exclusively on behalf of the needs of disabled children and their parents. He has successfully placed children in appropriate educational settings receiving services appropriate to their requirements. Mr. Gottlieb also holds a Masters of Science in Public Policy, with an emphasis on healthcare policy and public entities/non-profit organizations.

Dr. Kari Miller is a certified educational therapist and director of Miller Educational Excellence. She guides special needs students to believe in their own success, achieve in school, and change their lives. She can be reached at klmiller555@sbcglobal.net.

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