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January 15, 2020 From the Editor in Chief

From the Editor in Chief

Kathleen A. Hogan

A report from the U.S. Department of Education’s National Center for Education Statistics indicates that the number of students receiving special education services in public schools is on the rise. These figures include kids with learning disabilities, speech or language impairments, and other health impairments. These figures don’t capture the kids that don’t or can’t even make it into the public school system. We have no reason to believe that the parents of these children divorce or live apart any less frequently than the other parents. However, much of our approach as lawyers may be geared to the families who do not face the added challenge of a child’s special needs. The cookie-cutter approach to arriving at a parenting time schedule won’t help and may be detrimental to a child with certain mental or physical health issues. The “standard” formula for child support may need adjustment to account for benefits available to the child. The parents may not agree on whether their child even has special needs. Is the parent who denies any disability neglectful? Is the parent who sees an impairment overprotective? More importantly, how can the legal system address the family situation? The goal of this issue is to give practitioners a starting point for representing parents in such cases.

The initial challenge may arise in connection with the terminology used to identify the types of circumstances or conditions that may warrant special consideration. Margaret “Peggy” Graham gives us an overview in her article “The Many Meanings of Special Needs.” In the world of special education, the term generally means a child who has physical or intellectual needs that cannot be fully or adequately addressed in a regular education classroom. By contrast, a child may have a need that qualifies him or her for governmental benefits, but the child may not need special education services. Each need or eligibility may need to be investigated and addressed separately.

From the very outset of the representation, the discussions with a client with a child with special needs may need to be adjusted to suit the circumstances. “Initial Consults with Clients with Children with Special Needs: The Good, The Bad, and The Necessary,” by Beth C. Manes & Amanda S. Trigg, covers that situation. The authors offer recommendations for discussion. The list of topics includes legal and physical custody; spousal and child support; medical, life, and disability insurance; beneficiary designations; communications; social media; and guardianship. When the attorney knows in advance that the family has a child with special needs, the meeting can be tailored with that in mind from the outset. However, clients don’t always lead with that information. The authors note that if the lawyer learns about this child during the first meeting or even sometime afterwards, the advice provided and the game plan that has been formulated could require reassessment.

Andrew Lee introduces readers to individual educational plans (IEPs) in his article called “Introduction to Individual Educational Plans in Public Schools.” Such plans are governed in large part by the Individuals with Disabilities Education Act (IDEA). That Act outlines requirements for special education and related services individually tailored to meet a child’s unique needs. He also describes “504 Plans,” which lay out how a child with a disability will have access to the general education curriculum in public schools. Finally, the article briefly addresses “gifted or exceptional student plans,” which are programs serving the unique educational needs of a gifted child. The author offers a helpful table outlining the different plans, explains that the first step toward getting an educational plan in public school is to request a school evaluation in writing, and submits an initial list of questions to ask in preparation for the evaluation.

There are abundant suggested calendars and other parenting plan resources. However, few if any of those have been designed to account for a child with medical, physical, or other abilities or needs that differ significantly from other children in a same-age group. The article “Creating Parenting Plans for Families of Children with Special Needs” has been provided by Dr. Lynn Halem. The author suggests that parents with children who have special needs must design customized parenting plans that focus not only on known areas of concern but also on anticipated future issues and developments. She outlines considerations regarding future medical decisions and future care arrangements beyond just scheduling for time-sharing. It is perhaps this group of parents in particular who must embrace the objective and the practice of continued collaborative cooperation and decision-making, she says.

“The Use of Experts in Cases of Custody for Children with Special Needs” has been written by Margaret “Pegi” Price. The niche area of special needs and divorce is relatively new on the legal landscape, and there is very little precedent. Attorneys will have to create their own roadmap in many of these cases. The author advises that attorneys ask expert witnesses about the most important things the judge will need to know to meet the needs of the child. The expert’s testimony and report must create a link between the requested variation from the norms of child custody and the child’s special need.

Financial assistance from relatives can be a lifeline for a family dealing with a special needs child. However, it can be devastating to learn that that assistance, provided with the best of intentions, has turned into a disadvantage. In “The Economics of Divorce for Families with Children with Special Needs,” author Benjamin A. Rubin notes the necessity of getting everyone in the extended family “on board” with an understanding of how well-intentioned bequests or gifts can cause a child to lose eligibility for government benefits and programs. He also discusses the need for parents and family members try to identify, as much as possible, the resources that the child will have over the course of his or her lifetime.

Rebecca A. Iannantuoni and Keith Bradoc Gallant discuss special needs trusts and other tools in “For Children with Special Needs: Special Needs Trusts and Other Planning Options.” The authors note that such a trust fulfills two primary functions: first, it is a mechanism to manage property for someone who may not be able to do so for his- or herself, and second, and perhaps more importantly, it preserves the beneficiary’s eligibility for public assistance (e.g., Medicaid, Supplemental Security Income (SSI), public housing, food and/or energy assistance, etc.), and it allows those benefits to be supplemented with the assets held in the trust.

Most children, with or without disabilities, continue to need parental assistance when they turn eighteen. Many parents are surprised or concerned to learn that their ability to make decisions regarding education, finances, medical care, or anything else are rights that now belong exclusively to an adult disabled child. Sheila O. Zakre has provided an article called “My Child Is an Adult—Now What? Guardianship, Powers of Attorney, and Other Options.” She notes that frequently, the parent pursues guardianship without knowing about alternatives. Other times, parents may call a lawyer because they “need” a power of attorney, having no idea that it is the child who has to agree to give the agent authority. This brief overview addresses what attorneys may consider when advising a client about guardianship and less restrictive alternatives.

Karl W. Topor has provided the “Resource Guide for Attorneys Representing Families with Children with Special Needs.” This useful guide directs attorneys to a number of resources that will be invaluable when representing families confronting the challenges of providing for children with special needs. The list includes websites such as those for the Autism Society, the National Association for Down Syndrome, and many other organizations offering information and services related to particular kinds of disabilities; the Disability Rights Education and Defense Fund and other organizations explaining IEPs and associated rights; the SSA Office of Policy’s helpful discussion of the interrelation between child support payments and SSI; and special needs trusts and guardianship resources.

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Kathleen A. Hogan is a principal with McGuane and Hogan, P.C., in Denver, Colorado, and Editor in Chief of Family Advocate.