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Home > Blog > Family Law > Rethinking Custody: When Divorce Includes a Disabled Child

Rethinking Custody: When Divorce Includes a Disabled Child

Some people believe that parents of disabled children divorce more often than other parents. It’s a myth, but, as happens in any kind of marriage, divorces happen.

What happens when parents have to make the decision about custody of their disabled child? In most divorce cases, the judge will award joint physical custody, but that’s mainly because studies have shown it’s in the child’s best interests.

For disabled children, though, this may not be so. If your child has complex physical or emotional needs, the stress of joint physical custody can have harmful effects on the child, which means you and your former spouse will need to work together very closely to provide your son or daughter with a secure upbringing.

This won’t be easy, but it’s your duty to your child, so families in this situation devise creative solutions to care challenges.

Who Gets Custody?

One of the cardinal rules of divorce is to emphasize quality parenting time, as distinguished from the quantity. In other words, though there may be only one custodial parent, the other parent should find positive, non-disruptive ways to bond with the child, continue to take on respite care, and find other ways to stay involved in the child’s life.

The non-custodial parent should also retain legal custody, barring other factors. Assuming you choose to share joint custody with your former spouse, you would share legal custody. That means both parents have the right to make vital decisions and continue to co-parent as a team.

How do you decide who gets legal custody? If one parent has stayed home or otherwise taken on the bulk of material childcare activities up to that point, then that parent typically has the best claim to custody.

Remaining with that parent means your child is most likely to experience a lower degree of disruption to his her or life, and, especially for kids who have complex needs, better continuity of care.

The non-custodial parent may be required to pay alimony to support the other parent who remains at home or works only part-time. Though most significantly disabled children qualify for Social Security Disability Insurance (SSDI), that’s not usually enough to support a household.

The non-custodial parent will pay alimony, therefore, to bridge this gap and ensure the child receives appropriate care.

Expert Advice

As happens in many divorces, conflict may arise when the parties determine what will be best for the family, particularly in terms of residency and treatment for your disabled child. If this happens, your child’s treatment team can be an invaluable resource.

A unique skill therapists, doctors, and special education instructors can bring to your custody discussions is the ability to think outside the box with regard to visitation agreements, continuity of care, and changes to daily routine. Autistic children, for example, typically struggle with changes to their schedule, which can make any attempt at shared custody an uphill struggle.

Children with mobility limitations may need significant adaptive equipment or structural modifications that are impractical to install in two homes.

If at all possible, most specialists recommend that the custodial parent stays in the pre-divorce residence so as to cause the least disruption in the child’s life. Divorce is difficult for children under the best of circumstances, but if your child has limited communication skills or development disabilities, moving to a new home without the other parent can be particularly confusing or distressing.

Long-Term Planning and Communication

When a couple divorces and children are involved, the parents may assure themselves they’ll be free of each other as soon as their child turns 18 or graduates from college. Maybe you’ll have to get along at your son or daughter’s wedding, but for the most part, you won’t have to interact.

For parents of disabled children, however, this isn’t necessarily going to be the case. Significantly impaired children grow up to be significantly impaired adults, and may require lifelong care and financial support.

If you’re going to share legal custody, you and your former spouse will have to achieve a level of détente that enables you to make ongoing decisions together. Part of long-term planning involves organizing educational and medical information.

Parents should share insurance and medical records, decide whether both of you will attend IEPs and other vital meetings, and how you’ll make decisions about serious medical interventions versus minor care.

During the divorce, you’ll also want to make decisions about future financial concerns … or renegotiate existing ones. Caregiving is generally more manageable while your child is under 18 or 21 — whichever age your local school system provides services until — but after that, most families need to fill the gaps.

Many opt to create a trust to cover any expenses that arise in adulthood, especially after the parents pass away. You’ll also need to work with your former spouse to select a suitable guardian for the child if anything happens to you.

Your trust or savings plan should account for the costs of different types of care, or clearly outline the expected outcomes. For example, some families will select a guardian, but won’t expect that person to take on day-to-day care.

Instead, they usually expect their child will go live in a residential facility, and this can be expensive. Some even choose to move their child to such a facility shortly after he or she has left school because of a lack of respite care and services in the community.

Whatever you choose for your child should be carefully spelled out in advance.

Plan Now, Plan Better

Divorce is just as great a fact of reality as disability is: Both touch people from all walks of life and neither is easy to deal with. When a family encounters both, the situation gets especially complicated, and you may need support.

You’ll need Rowdy G. Williams Law Firm. If you’re not sure how to proceed with your divorce while also planning for a disabled child’s future, contact Rowdy G. Williams Law Firm today.

We’ll help you find sound solutions to your family’s unique challenges and identify key long-term planning factors for discussion in mediation. Whenever children are involved, your divorce isn’t just about your marriage, and that goes double when your child is significantly disabled.

So take a step back and consider what it means to co-parent with someone to whom you are no longer married, with no end in sight. Your custody and planning should reflect your capacity to participate in that. Your child comes first; how will your divorce demonstrate that commitment?

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