Special Needs Children

Just as was the case pre-divorce, the child's primary caretaker needs resources to continue their caretaking role. Both the parties and attorneys should address post-majority custody for a child with severe special needs, including guardianship. The Parenting Plan should specify what items each parent needs to have in their home as it relates to the child's safety, especially if the child elopes or self-harms (safety locks on drawers and appliances, double sided locks, audio/visual monitors, etc.). A Parenting Plan should also define who is an appropriate care-taker for the special needs child when the parent(s) are away.

If there is a concern the non-custodial parent will not comply with the child's IEP or will send a proxy to IEP meetings (such as a new significant other or grandparent), both parent's responsibilities for attending and participating in IEP meetings and complying with the school's requests for home activities should be outlined in the Parenting Plan. Since most special needs children benefit from predictable routines, those routines should be incorporated into a Parenting Plan in order to prevent confusion.

It is important to ensure everyone in the divorce process understands your child's "day-in-the-life." Any special supplements or dietary needs of the child should be included in the Parenting Plan. Specify the child's current and anticipated future therapy regimes and agree each parent will make sure the child shall attend all therapies. To ensure the non-custodial parent does not attempt to have the child's needs reclassified, the Parenting Plan should prevent the non-custodial parent from hospitalizing the child without the custodial parent's consent, except in emergency situations, and may not initiate routine, evaluative, medical, or therapeutic care for the special needs child without the custodial parent's written permission.

When it comes to supporting a special needs child, money is where the rubber meets the road. Creating a Special Needs Trust is critical, especially for children who may never achieve independence. Specify who pays for the trust's creation (average cost is between $3,000-$5000) and consider having each parent's life insurance and 401(k) plan name the Trust as a beneficiary. While Georgia does not mandate post-majority child support, even for special needs children, courts can award alimony to the primary custodial parent for a special needs child after transitioning into adulthood.

The parties should also consider purchasing long-term care insurance as part of a divorce settlement. Unlike most divorces which do not involve estate planning, a life-long care plan, and possibly the use of a life care specialist, is critical for special needs children who have profound needs. Even if your special needs child is very young, now is the time to put these plans in place.