Particular Wants Require Particular Consideration in Baby Custody Instances

Divorces and child custody cases come in all shapes and varieties. I have been representing clients experiencing these family transitions for over twenty-five years, and one thing that has remained the same is that every case deserves its own special analysis to find the right solution for the parents and children specifically involved. That fact is never truer than in cases which involve children (or parents) who have special needs.

While the divorce rate hovers around the 50% mark for most marriages, the rate when a special needs child is in the picture soars to somewhere between 70-90%, depending on which study you reference. That’s incredibly high, and certainly indicative of the amount of stress raising a special needs child can place on even the strongest of marriages. But just like during the marriage when that child, and those parents, needs some extra time and attention to do things right, when it comes to a divorce involving these individuals, it’s time to take out the kid-gloves to make sure everything is handled well, and every base is properly covered.

What Makes These Cases So Different?

Cases with special needs children require certain information that usually can only come from outside experts who have a special understanding of what all is necessary to care for the child throughout his or her life. You see, most special needs children remain dependent, in some way, on their parents for their entire lives.

Typically, family courts handle child custody matters until the child reaches the age of majority (the age of 18, in most states). Because of this, your attorney must ask different questions and use strategies to gather information that isn’t always necessary for a “regular” divorce or child custody action. If those steps are left out, or forgotten, the end result can have negative effects down the road for the child and the parents.

Defining the Special Needs

It’s important to start defining the special needs which exist right from the start of the case. The following questions need to be answered before any discussions about agreements, consent orders, or parenting plans begin (please note some of these are difficult questions to answer and require difficult conversations to be held, but it’s imperative to the success of the action):

  • What is the official diagnosis? Who made it?
  • Do both parents agree on the diagnosis?
  • Has a treatment plan been set up? Do both parents agree with the treatment plan?
  • If the child is in school, has the school been notified?
  • Is there an IEP already set up for the child, and if not, is that scheduled to be done?
  • Is the condition of the child ‘curable’, ‘treatable’, or ‘terminal’?
  • Do these special needs affect the child’s daily schedule, and thus the parents’ daily or weekly schedule?
  • Do the special needs negatively impact the way the child handles transitions from one environment to the other?
  • Will these special needs require financial support past the age of 18, and if so, what has been put in place prior to separation to meet these needs (i.e., estate plans, trusts, etc.)? How will those be handled post-divorce?
  • Do the parents agree on what will happen to the child if both parents pass away?

These questions, and the ones that will naturally form following the answers to them, will help define how the court should frame the case going forward. It will help the court determine the extent the financial resources must be made available for the child and the parent who is tasked with primarily taking care of the special needs child. It will also help delineate where the children of the marriage who don’t have special needs need to be worked into the equation, as well.

When you’re considering separation or divorce, it’s important to remember to bring with you all relevant documentation of your child’s special needs (such as medical records or summaries; journals of caretaking; a recent IEP; or medical bills) with you to your first appointment with your divorce or custody attorney. That will make the discussion easier and will give the attorney much of the information he will need to properly advocate for you and your child.

Ben Stevens has provided exceptional legal counsel and support to families throughout South Carolina for over two decades, handling all matters of family law, such as child custody, child support, and divorce. He and is team are well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact our office at (864) 598-9172 or [email protected] to schedule an initial consultation.

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