Navigating Custody And Visitation Issues: Divorce Settlement With Special Needs Children

MLF Team

Going through a divorce can be stressful for any family with children, but when a special needs child is involved, unfortunately the process often becomes much more complicated. As the United States Centers for Disease Control and Prevention (CDC) explains, structure and stability can be especially important for many special needs children. Divorce, by nature, disrupts a family’s established routines. Navigating custody and visitation and agreeing to a divorce settlement with a special needs child will require a difficult series of adjustments for most families. An experienced family law attorney at The Millard Law Firm may be able to provide you with the support you need to ensure your family thrives. We can help you consider your child’s long-term and daily needs when establishing a custody arrangement; contact us today at (678) 319-9500 for a free initial consultation.


The Divorce Rate for Families With Special Needs Children


Raising a child with special needs is in many cases more demanding and complicated than raising a child without. The stress of learning how to care for a special needs child can impact marital and sibling relationships. In some cases, a sibling may play a caregiver role for the child with special needs, but in many others, built-up resentment can cause serious conflict between siblings and between the non-special needs child and their parents.


A 2004 analysis in the Developmental Disabilities Bulletin found that the divorce rate for parents of a special needs child ranged from 70-80%, compared to the national divorce rate of about 50%. Parents of a child with autism have an average divorce rate of 75%.


Talking to Your Special Needs Child About Divorce


“What do I tell my child about my divorce?” becomes a more complex question to answer when the child has special needs. You likely know your child well enough to anticipate what they can understand, but bear in mind that children, with or without special needs, often blame themselves for their parent’s divorce. Your special needs child may believe their disability caused the divorce, which can take a huge mental and emotional toll on the child.


You may wish to talk to your child’s psychiatrist or doctor about what to say when telling them about the divorce. You can start with these tips and then customize your approach as needed, to ensure it is appropriate for your child:

  • Present a united family front. Speak with your child together as two parents who love them, and let the child know that although you both love the child, you have decided to live apart.
  • Keep the child’s daily schedule as close to normal as possible. If it is safe and appropriate to do so, keep the child in the family home, too.
  • Each parent should separately reaffirm their love for the child and reassure the child that the divorce is for “adult reasons” and not because of the child, their disability, or their behavior.
  • If you have more than one child, keep an eye on the non-special needs siblings. They may blame the special needs child for their parent’s divorce, and take their resentment and pain out on their brother or sister.


You may face other specific questions from your children. If possible, talk with your co-parent about how you will answer anticipated questions so that you give consistent answers that avoid blaming the special needs child.


Building a Custody Plan for a Special Needs Child


Most custody arrangements expire when the child turns 18. However, parents of a child with special needs are likely to be life-long guardians to the child, so a custody plan needs to account for the long-term, not just until the special needs child reaches their majority.


Some families may wish to have their child’s primary care physician, psychiatrist or counselor involved in making a custody arrangement in order to receive guidance in crafting a plan that will minimize disruptions for the child. Traditional shared custody arrangements, such as 50/50 shared custody or spending every other weekend with the non-custodial parent, may be too disruptive to some special needs children’s routines, impacting their progress and mental wellness.


Financial Considerations When Providing for a Special Needs Child


If one parent provides full-time caregiver services for the special needs child and does not work outside the home, this can seriously affect the financial settlement in a divorce. The Georgia Bar Association explains that one option may be setting up a Special Needs Trust (SNT), which provides additional income and financial benefits for the special needs child, even after they turn 18, without jeopardizing their government benefits eligibility.


A full-time caregiver arrangement may also affect spousal support, also called alimony, for the non-working parent; even if they complete vocational training and get a job outside the home, there is still the likelihood of a significant income disparity. In addition, the custodial parent may need to find specialized childcare for the special needs child, which is usually more expensive than regular childcare. Accounting for these circumstances should be part of your financial negotiations in the divorce. A divorce lawyer from The Millard Law Firm can help you learn which financial structures you may need to ensure your special needs child is properly provided for.


Determining Non-Familial Caregivers in a Custody Decree


One of the most common questions parents of special needs children have post-divorce is, “Can my ex leave my child with his girlfriend overnight?” or similar questions about new significant others in the divorced spouses’ lives. This is a tricky question and one that should be resolved during divorce negotiations, not answered after the fact.


Concerned parents may be able to place a clause in the divorce decree denying caregiver responsibility to people other than the licensed caregiver or those who are related by consanguinity or affinity to the special needs child within the second degree. In general, such clauses can restrict caregiver services to close relatives, but it may not be possible to restrict your ex-spouse’s new partner from being around the special needs child unless that person has a history of abuse or neglect of the child.


Are You Contemplating Divorce Involving a Special Needs Child?


If you are considering filing for divorce or if you’ve been served with divorce papers, you may find peace of mind in retaining legal representation as soon as possible. The practical considerations of shared custody of a special needs child and the emotional turmoil divorce brings can be overwhelming. The experienced family law attorneys at The Millard Law Firm offer compassionate, solution-oriented guidance through these complex legal issues. Our attorneys help clients with special needs children mediate divorce settlements that take their family’s particular circumstances into account and help to ensure that each child is supported financially and socially. Schedule your free initial consultation today by calling our office at (678) 319-9500.