Each year, millions of parents choose to end their marriage, which can have a profound effect on children. Divorce can be even more difficult for children with special needs and their parents. When the South Carolina family law courts look at custody and support agreements, there will be complications associated with determining what is in the best interests of the child.
What Is in the Best Interest of the Child?
The “best interests standard” is a common legal standard used in family law courts. Instead of automatically splitting custody or favoring one parent over another because of tradition, the court now considers what is in the child’s best interests.
This is particularly vital when it comes to children with special needs. In many divorce cases, parents may have a custody arrangement that has the child with one parent during the week and the other on weekends and one weekday. For a child with special needs such as autism, this might not be practical, and in fact, could be harmful to the child.
Not only should these arrangements be made so that they are most beneficial to the child’s emotional, physical, educational, and social needs, but they also need to consider the requirements for health care needs and other accommodations.
In many circumstances, parents may want joint custody. Perhaps they switch off every few days so that they get equal time with their child. But when a special needs child is involved, joint custody might not be practical.
Joint custody could lead to problems because your child may not be able to handle all the back and forth and inconsistency. This means you’ll need to have a talk with your spouse about what you both believe would be the ideal custody situation for your child.
When having this talk, consider the environment in which your child will live. If you’re staying in your marital home, that could be the best option for your child because the child is used to it. Perhaps it already has essential medical equipment installed and your home is close to your child’s caretakers. Maybe your child is also close to their school, and if you move, they wouldn’t be able to go there anymore. Moving your child to another home could be hard and could have a negative effect on them.
You’ll also have to consider which spouse has the time and energy to care for the child full-time, if need be. If one spouse works 40+ hours a week, then they may not be able to look after the child in addition to their work schedule.
Unique Considerations When Divorcing with Special Needs Children
Managing a child with special needs can be a full-time job and divorce certainly complicates some of these issues. If you are divorcing your spouse and you have a special needs child, there are many unique factors that you will have to consider. These include:
- What are your child’s functional and healthcare needs, now and in the future? How do you plan to manage those needs? How much will it cost? If you aren’t sure, you may want to retain the services of a life care specialists for an answer.
- Divorce agreements need to specify which parent has the authority to make decisions on medical, education, and other treatment needs, since these choices will be more frequent and have greater consequences for a special needs child.
- Has your visitation schedule considered the emotional and physical needs of your child? Does it also consider the more frequent appointments that your child might have with professionals that help with their care?
- Have you already maximized your access to public benefits for your child? Is your eligibility for these benefits going to change with your divorce? If so, how?
- Many children with disabilities and special needs are eligible for Social Security benefits. There may be additional benefits available when they reach the age of 18.
- How are you going to structure a child support agreement so that it covers your child’s needs and is fair? Have you included all relevant costs and benefits received in your calculations?
- Even if you reach an agreement with your spouse about custody and support, the court may require that you set up a special needs trust.
- When a special needs trust holds child support payments, there are requirements for the establishment and funding of the trust.
- Even an adult child may be eligible to receive child support payments if they have qualifying disabilities or special needs.
- Parents of special needs children typically should avoid directly naming a child as a beneficiary on a life insurance policy. A large payout could jeopardize your child’s future benefits.
Important Issues to Resolve in Divorces with Special Needs Children
Having a special needs or developmentally disabled child will affect a divorce in numerous ways:
Parenting Plans/Visitation
During a divorce with special needs children, parenting plans need to be crafted with great care. Oftentimes, one of the common examples of parenting plans will not be suitable for the particular needs of the child. Of particular concern will be the child’s ability to transition comfortably from one environment to another. And in many cases, it will be better for the child to have less frequent visits that extend for a longer period of time with the non-custodial parent.
Another important consideration is what requirements the child has when he/she stays somewhere overnight. For example, special equipment could be needed, and the non-custodial parent will need to know in intricate detail the child’s routine, exercises, therapies, required medications, etc.
It is not always a given that both parents know all of this, and it might be that one of the parents does not wish to have as much of a role in the child’s care as the other. These and other critical issues will need to be discussed and resolved when developing the parenting plan.
Additional Medical Needs
With a special needs child, there could be thousands of dollars in extra medical costs that need to be paid each year – depending on the specific condition the child has. Many of these children make frequent doctor visits, visits to therapists, and have healthcare specialists that come and work with them at home. Occasional or frequent surgeries and other procedures may also be required throughout the child’s life. It needs to be decided who is responsible for the insurance premiums, deductibles, and uncovered medical expenses the child incurs, and all of this should be accounted for when developing the child support arrangement.
Special Educational Needs
If a special needs child has learning disabilities, he/she may need to go to a special school and/or receive in-home tutoring. While public schools provide some services for developmentally disabled children, they do not always have the resources available to provide for all of their educational needs. If the parents have educational expenses that need to be paid out of pocket, these expenses should also be addressed during the discussion around support.
Guardianship and Support Beyond the Age of Majority
In South Carolina, child support generally ends when the child turns 18, although support can extend in some cases to help the child through college. With a special needs child, there is a good chance that the obligation to support the child will not end when the child reaches adulthood.
First of all, many developmentally disabled children will need someone to look after them and take care of their needs even after they turn 18. If this is the case, the parents will need to decide who will be the child’s guardian. In most cases, this will be the parent who has physical custody while the child is a minor, but this should still be made clear ahead of time.
Since the child may need someone to care for them and may not be able to participate in gainful activity, child support may also need to continue after the child reaches the age of majority. This could become an issue, however, if the child is dependent on government benefits such as Medicaid and Supplemental Security Income (SSI). In such cases, a special needs trust might need to be set up in order to preserve the child’s ability to receive income and continue to qualify for the benefits they depend on to survive.
Talk With Your Child’s Therapist
Not having been through a divorce with a special needs child before, it is hard to know how the divorce is going to affect them. This is why it may be necessary to call in the help of a professional, such as your child’s therapist, who has experience in this area.
You could ask the therapist how you should break the news to your child about your divorce and what you should do if they become overwhelmed, stressed, angry, sad or confused. You could also inquire about setting up a new home for your child if you have to and how you should modify your schedule to serve their needs.
Speak with an Experienced South Carolina Family Law Attorney
If your child has special needs and you are considering divorce in South Carolina, there are a lot of bases to cover. Most children are resilient, but you will need to take extra care and concern with each decision in this case. You and your spouse will face ongoing challenges, and it’s best if you can reach an agreement on the major issues before you file for divorce.
Whether you can agree or not, the courts are going to consider what in the best interests of your child first, so you should do everything possible to safeguard the rights of your family. The experienced and compassionate family law attorneys at Cate & Brough Law Firm understand these complex issues and will work on behalf of you and your child.
Contact our Spartanburg office now at 864-585-4226 or reach us online to schedule an initial consultation.
Cate & Brough, P.A.
