GPSOLO April/May 2008
When Parents of Children with Disabilities Divorce
Each year, parents of a million American children divorce. Divorce affects everyone involved, but it is often the most difficult for children with disabilities. When custody determinations or modifications involve children with disabilities, the decisions regarding the “best interests of the child” can be even more complex.
The words “best interests of the child” have no one, single meaning, and the laws in most states define “best interests” by listing a number of factors for the court to consider. Common factors in many states include the following: the capacity of the parents to understand and meet the needs of the child; religion and/or cultural considerations; the child’s wishes; the need for continuation of a stable home environment; the relationship between the child and parents, siblings, and others important in his or her life; the child’s adjustment to school and community; the age and sex of the child; and parental use of excessive discipline or emotional abuse.
Because all children are unique and respond differently to divorce, lawyers should become familiar with the characteristics of all children in the family—including any child with a disability—such as the children’s age, emotional maturity, resiliency to change, and ability to cope with changes in family structure during and after the finalization of the divorce. Divorcing parents need to recognize more than just their legal responsibility and be willing to adjust the environment to make it ideal for the child to grow and mature.
Lawyers assisting clients who have children with disabilities should focus on resolving the following critical issues: (1) visitation agreements and transitions between homes; (2) educational decision making; (3) health and medical care, including special therapies; and (4) social and recreational opportunities.
In some families, parents do not agree about how to address the unique needs of a child with a disability. Sometimes, one parent may be in denial about the existence of a disability or may not agree with the other parent regarding the best approach needed to care for or seek appropriate supports and services to meet the needs of that child. In those cases, lawyers should consider engaging neutral professionals who can guide the decision-making process and offer alternative solutions to “typical” visitation arrangements. Professionals may also make suggestions about how to obtain consensus regarding any care or treatment the child may need.
Typical visitation arrangements for children of divorcing parents (whether the children have a disability or not) involve alternating weekends and/or midweek visits, as well as extended school holiday and summer visits. For a child with a disability, it is sometimes better to minimize frequent adjustments to a new environment, especially during the school year, and focus on structuring longer visits with each parent for more concentrated time. For many children with disabilities, especially children diagnosed with autism, a disruption to their daily routine can affect behavior and school performance and result in unnecessary stress for both the children and parents. Parents should communicate to minimize disruptions or changes in routines. This will ensure that the routines in each household complement each other and serve to avoid any negative impact on the child.
Divorcing parents should take a similarly thoughtful approach to child care arrangements. The parent with whom the child lives may need to seek out temporary respite care to give that parent a break; finding a trusted babysitter or child care facility that is able to respond to the unique needs of a child with a disability is often challenging. With respect to these arrangements, divorcing parents should strive to minimize last-minute changes. Even slight alterations, such a those associated with a different pickup location, a different pickup time, or a new babysitter, may result in unnecessary disruption to routines and create anxiety for the child involved. Even as the child grows into adulthood, this may continue to be an issue. Children with disabilities often need supervised care even as they get older. For example, a child with developmental disabilities who cannot function without supervision will need assistance in most aspects of daily living activities such as bathing, dressing, feeding, and/or social interactions with others.
Children with disabilities should be afforded the same opportunities as children without disabilities when it involves educational programming, social opportunities, and the ability to be as independent as possible. Families often struggle to overcome barriers that serve to exclude a child with a disability in school and social settings. To promote inclusion, parents must work together to seek opportunities for the child to participate in school and social events.The task of finding appropriate educational supports and social outlets is often a challenge for parents of children with disabilities. Divorcing parents should collaborate in selecting appropriate educational programs and making decisions, taking into consideration the time needed to research the appropriateness of the program, the supports that the school is suggesting, and other supports outside of the school day, such as tutoring or structured remediation that will support learning.
If the child is of school age and qualifies for special education, the school system will identify the disability under the eligibility criteria outlined in the Individuals with Disabilities Education Improvement Act of 2004, Public Law 108-446, 20 USC §1400. This law provides individualized services to students in public schools and emphasizes inclusion of students with disabilities to the extent possible with non-disabled peers. Children who are identified with a disability, and who need services, receive an Individualized Education Program (IEP), which includes making decisions on academic goals, placement, accommodations, assessments, and other needed supports. The IEP is developed with input from both school personnel and the family and is based on the child’s present levels of performance.
For other students whose disabilities may require more minor support related to their education, Section 504 of the Rehabilitation Act of 1973 provides eligible students with accommodations and modifications to assist them in the school environment. Section 504 is a civil rights law that prohibits discrimination against individuals with disabilities and ensures that the child with a disability has equal access to an education. Under this law parents also participate in meetings where appropriate placement and services are determined.
The family law attorney should obtain school records that document the disability and describe the educational program that has been designed to meet the unique needs of the child. These school records can often be used to illustrate why any request that deviates from prescribed child support guidelines or a standard possession order is appropriate. At a minimum, records should be reviewed for the following: 1) the individual assessment report that includes test scores for both intellectual functioning levels as well as academic performance levels; 2) behavioral information and suggestions for instructional approaches that address the unique needs of the child; 3) any medical records that document the disability and outline prescribed treatment; 4) the current IEP; and 5) additional reports such as psychological reports, speech evaluations, assistive technology evaluations, functional behavioral evaluations, occupational therapy evaluations, and physical therapy evaluations.
These records provide substantial information related to the nature of the disability and offer a prognosis for improvement and recommendations for needed supports. This information is valuable in helping parents to develop a child-centered visitation plan that focuses on the best interests of the child.
It is important for divorcing parents to have a final divorce decree that clearly states which parent will make educational decisions, or in cases where these decisions are shared, how parents can overcome an impasse when disagreements occur. Precise drafting helps guide the decision-making process so as not to delay needed services.
Medical treatments and therapies are often part of the daily routine for parents who have a child with a disability. For children with medical conditions such as cerebral palsy, orthopedic impairments, or serious health conditions, critical decisions include obtaining ongoing medical care, administering medication, making periodic appointments with health care professionals to monitor physical conditions, and granting consent to invasive procedures. Because needed medical services may be more frequent and involve additional expense, parents need to agree about who makes decisions involving invasive procedures, how each parent is included in the decision-making process, and how information is shared when needed medical services are recommended by the child’s physician. In many cases, other services such as counseling, physical or occupational therapy, speech therapy, or other specialized treatments are needed for children with disabilities. Emphasis on careful drafting regarding medical decisions is very important.
Parents should work together to locate appropriate social and recreational activities for children with disabilities. In addition to familiar activities such as scouting, organized sports, or other children’s events, many communities offer specialized, structured activities for children with disabilities such as art classes, swimming, or camps that match these children’s unique needs.
When researching social opportunities, parents should consider whether the adults involved have experience working with children who have disabilities and whether these social or recreational programs will include the child with children who do not have disabilities. Parents should also work together to maintain the schedule for social and recreational activities and be flexible with visitation so that the child participates on a regular basis. Transportation to and from activities may require more coordination between parents for the benefit of the child.
As children mature, parents should also work together to explore options for post-secondary education and training, employment, independent living, and other goals for the future. Planning for the future will require an organized approach to locating community supports, completing applications, developing interviewing skills, and practicing self-advocacy skills. Many students with learning disabilities, emotional disabilities, or physical disabilities are successful in continuing their education after high school graduation, owing in part to supports at post-secondary institutions and high expectations for their ability to become self-sufficient.
Children with disabilities need the continued support of both parents after a divorce. Custody and visitation plans that focus on the best interest of the child must consider school programs, transitions between households, the opportunity for the child to participate in community and leisure activities, and flexibility for visitation that lets the children keep appointments for special therapy, counseling sessions, or other medical care. In preparing for life after high school, parents should work together to identify a career path and adult living arrangements that will support the child as he or she continues to grow and mature into adulthood. For children with severe disabilities, who require continuous care and supervision owing to developmental or physical delays, parental support will continue into adulthood. Those parents will also need information about estate planning, available health insurance, and Social Security benefits that can help provide a secure future for their child.
Barbara Epperson has more than 25 years of experience in the field of special education. Her practice focuses on family law, probate, and estate administration in Houston and Galveston, Texas. She may be reached at firstname.lastname@example.org.