Family Law Quarterly
Volume 46, No. 2 (Summer 2012)

Symposium on Special Needs and Disability in Family Law  

Table of Contents

Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.

Editor's Note
Linda D. Elrod


Special Needs and Disability in Custody Cases: The Perfect Storm
Margaret "Pegi" Price

This article discusses the unique issues of children and parents with special needs when they go through the family courts. A general discussion of how special needs are relevant to the family courts precedes an exploration of the issues inherent in cases involving special-needs children.  The article then moves on to a discussion of the important issues in cases involving parents with special needs. The author concludes that to evaluate and handle special-needs family law cases, lawyers and judges must work harder and simply cannot just move these cases along as if they are business as usual. Ultimately, the author insists, family courts should be measured not by how quickly and efficiently a divorce is processed, but rather, by how compassionately and intelligently a working plan is sensitive to the needs of the human beings involved.

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Structuring a Divorce When a Spouse or Child Is Disabled
Micah H. Huff & Martha C. Brown

This article explores the complex problems facing divorcing parties with a disabled spouse or child on public benefits, given the financial implications divorce may have on eligibility for those essential public benefits. The authors provide a detailed look at the major government benefit programs (Social Security Disability Insurance, Supplemental Security Income, Medicare, Medicaid, and House Assistance Programs) and insist that family law attorneys must have a fundamental understanding of benefits, qualifications, and means-testing of these programs to adequately represent such clients.

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Representing Clients with Mental Disabilities in Custody Hearings: Using the ADA to Help in a Best-Interests-of-the-Child Determination
Kathryn A. LaFortune & Wendy Dunne

The Americans with Disabilities Act (ADA) was supposed to be a breathtaking promise for those with mental disabilities. However, representing a client with mental or intellectual disabilities still presents unique challenges in a stressful child custody hearing, where the fact of the disability itself may impact the outcome of the case. The authors suggest that just as physical disabilities require the court to modify the custody hearing process, mental or intellectual disabilities require the same or similar modifications, such as managing the courtroom layout, allowing parties to take notes, and permitting longer and more frequent breaks.  With appropriate modifications to the process, made available in large part through the ADA, all parents with mental disabilities--but especially military veterans who are involved in custody hearings after multiple deployments to Iraq and Afghanistan––will and should have a chance to show the court why their disabilities do not necessarily prevent them from being “fit” parents.

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Special Needs Trusts
Ruthann P. Lacey & Heather D. Nadler

One in twenty-six American families reports raising a child with a disability. Thus, special needs trusts are no longer a concept reserved just for special situations. Family law, elder law, special needs, and estate planning attorneys regularly encounter situations in which good planning centered around an individual with a disability is essential. Special needs trusts are a legal planning tool that enables children and adults with disabilities to more easily become eligible for public benefits while also providing for at least partial reimbursement to the government for some of these benefits.  The authors explain the types of special needs trusts and how they can work with regard to public benefit eligibility rules of four of the principal federally-funded programs that provide benefits to the aged, blind or disabled. In addition, the article covers distribution standards, trustee selection and duties, reporting requirements, and attorney liability.

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Explaining Abuse of the Disabled Child
Margaret F. Brinig

This article discusses abuse of disabled children in terms of two competing theories for why it may occur. The author contrasts the evolutionary biology theory with mimetic desire. The author concludes that although the evolutionary biology explanations for child abuse may be helpful and important, more territory can be covered by Rene Girard’s mimetic cycling theory.

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Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
Uniform Law Commission

This Uniform Act, drafted by the National Conference of Commissioners on Uniform State Laws (ULC), is presented as approved and recommended for enactment in all states at its annual conference, July 27 through August 3, 2007, without prefatory note or comments.

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Publication Date: October 2012

 

 

Ordering Information

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Please Note:

The materials in the Quarterly represent the opinions of the authors and shall not be construed to be the action of the American Bar Association or the Section of Family Law unless adopted pursuant to the bylaws of the association and the section.

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Board of Editors


Editor in Chief
Linda D. Elrod


Associate Editor
Robert G. Spector


Board of Editors
Jeff Atkinson
Jean N. Crowe
John DeWitt Gregory
Robert J. Levy
J. Thomas Oldham
John J. Sampson
Samuel V. Schoonmaker, IV
Nancy Ver Steegh


Reviewing Editors
Susan Appleton
Patricia M. Hoff
Harry D. Krause
Paul M. Kurtz
Dr. Milfred D. Dale


Managing Editor
Deborah Eisel


2011-2012 Student Editorial Staff
Washburn University School of Law


Student Editor-In-Chief
Ellen J. Grennier


Student Executive Research Editors
Benjamin T. Hinkle
Anna M. Jumpponen


Student Senior Editor
Leah N. Bockover


Student Junior Editors
Travis L. Cook
Hazel L. Gauthier
Eileen D. Ma
Justin J. Pierson
Laura E. Poschen
Stephanie A. Randall



Staff Assistants
Penny R. Fell
Shirley Jacobson