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Special Needs Children

How Does Divorce Affect Special Needs Children? 

At Meriwether & Tharp, we understand that while every divorce is tough, a divorce involving a special needs child can be even more difficult. This page provides information on the unique custody, educational, medical, and financial concerns for divorcing parents of a special needs child.


Unique Concerns Involving a Special Needs Child

Divorce under the best of circumstances is challenging, but divorces involving special needs children require particular care. Specific factors which parents of a special needs child must evaluate during a divorce include:

Custody of a Special Needs Child:

Educational Considerations for a Special Needs Child:

Medical Considerations for a Special Needs Child:

Financial Considerations for a Special Needs Child:

Custody of a Special Needs Child:

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.

Educational Considerations for a Special Needs Child:

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.

Medical Considerations for a Special Needs Child:

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.

Financial Considerations for a Special Needs Child:

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.

Common Parenting Time Schedules

Traditional Visitation ("Standard Visitation")

Sunday
Monday
Tuedays
Wednesday
Thursday
Friday
Saturday

Under this plan, that traditionally has been used the most for outlining custody, the primary custodian (A) would have most of the parenting time with the minor child(ren). The secondary custodian (B) would have parenting time from Friday after school (or starting at 6 p.m.) until Sunday at 6pm (or Monday morning at school) every other weekend and dinner(s)/overnight visitation during the off week. The choice between pickups and drop-offs at school v. at 6 pm varies based upon the needs of the parties in each case with a preference towards drop offs at school to avoid conflict that may be caused by an in- person exchange.

  • Less transfers during the school week
  • Allows for work related travel during the week

Extended Traditional

Sunday
Monday
Tuedays
Wednesday
Thursday
Friday
Saturday

Similar to the traditional visitation plans, this format has an every other weekend approach. The extra day allows for the noncustodial parent (B) to have extended visitation with the child(ren). As in the traditional example, pickups and dropoffs can occur either at school or at a designated time. This hybrid of joint visitation and traditional visitation has been growing in popularity over recent years.

  • Allows more visitation time with the non-custodial parent
  • Generally maintains a home base for the child during school

Weekly Exchange (Joint Custody)

Sunday
Monday
Tuedays
Wednesday
Thursday
Friday
Saturday

This custody arrangement has also been popular. Obviously, it's a week on/week off format that requires extended time away from the other parent. As a result, this format is slightly disfavored as of late.

  • The minor child has equal time with each parent.

2/2/5 (also referred to as 2/2/3) (Joint Custody)

Sunday
Monday
Tuedays
Wednesday
Thursday
Friday
Saturday

This plan is a relatively new version of the weekly exchange schedule and provides for a similar 50/50 joint custody arrangement. This plan, however, breaks the monotony of the weekly exchange schedule and provides its own level of certainty for the child(ren) involved. Since each parent has two designated nights for visitation during the week, it allows a parent to schedule day care and extracurricular activites on a consistent basis that was generally prevented under the week on/week off type of schedule. Additional, this plan provides each parent with alternating full weekends with the child.

  • Children don't have to wait whole week to see both parents
  • Great for ensuring a child is able to participate in activites that happen on a consistent day of the week
  • Easier to remember schedule during the week - if your parent time is on Wednesday, it is always on Wednesday.
  • Alternating full weekends with both parents
  • 50/50 Joint Custody

Additional Resources

With a huge library of resources which cover every aspect of divorce from start to finish. You've got questions, Meriwether & Tharp is here with the answers you need.
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