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Children with Special Needs

Every child is unique but some have special needs which affect a parent's options and choices with regard to divorce, custody, parenting, estate planning and Family Law in general.

If you have a child with developmental delays, severe psychiatric issues, medical conditions or disabilities and you are going through a divorce, one of your biggest concerns may be the long-term protection of that child's unique interests.

Some children have special needs which will obviously impact their entire lifespan and may require a non-traditional parenting schedule, special estate planning, a long-term guardianship, establishment of a trust fund, etc.

Margaret S. Price, in her 2015 article entitled "Best Practices in Handling Family Law Cases Involving Children with Special Needs", defines those needs as encompassing "a wide range of conditions and diagnoses. Sometimes the label gets used where it might not be appropriate. Routine aspects of childhood are not special needs.  The 'terrible twos' and puberty are not special needs. Typical short-term childhood illnesses or injuries are not necessarily special needs. When a child has the flu or breaks an arm, this does not confer the status of 'special needs' upon that child." 1/

Children with special health care needs can be defined as those “children who have or are at increased risk for chronic physical, developmental, behavioral, or emotional condition and who also require health and related services of a type or amount beyond that required by children generally.” 2/

It's impossible to create an all-inclusive list of conditions that constitute "special needs" but a partial one would include congenital birth defects that impact the child's ability to move or provide self-care, autism, Down syndrome, deafness, blindness, cystic fibrosis, paralysis, missing limbs, post-traumatic stress disorder (PTSD), major organ failure, extreme psychiatric disorders, muscular dystrophy, mental retardation, fetal alcohol spectrum disorder, Tourette's syndrome, severe ADHD or learning disabilities, epilepsy, bipolar or oppositional defiance disorder, processing disorders, leukemia and other cancers.  Unfortunately, the list is literally endless.

What can my attorney do about my child's special needs?

If your child has special needs which are not short-term and which will severely impact the quality of his or her life to the point of dependency beyond the usual age of majority (18 in Kentucky), you need to bring that to your attorney's attention from the very beginning.  Possible options during and after the divorce or litigation process include:

  • Highlighting the child's special needs in the initial filing

  • Appointment of a guardian ad litem to represent only the child's interests

  • Expert evaluation of the child's history, condition, symptoms, course of treatment and prognosis

  • Expert evaluation of the child's unique educational history and future needs

  • Counseling for the child to minimize the disruption to his or her life patterns during the litigation

  • Inclusion of the costs for extraordinary medical care, physical therapy, occupational therapy, medications, special equipment, transportation needs, caregiver assistance, special nutritional requirements, special clothing and personal care items, respite care, etc. in determining special requirements with respect to temporary or permanent child support

  • Establishing a non-traditional parenting plan which incorporates the child's unique needs and care requirements

  • Incorporation of the child's special needs and requirements into the discovery process (interrogatories, requests for production, requests for admission, depositions, etc.)

  • Accumulation of critical records documenting the child's special medical, psychiatric or educational needs

  • Consideration of whether the requirement for a custodial parent to provide around-the-clock care to a grievously disabled dependent child should be factored into a long-term maintenance claim against the non-custodial parent

  • Estate planning to create and fund a trust for the care of the child after your death

  • Appointment of a guardian to provide care for your child if both parents are deceased

Extreme expense of raising a special needs child

In Kentucky, child support obligations are determined based on Guidelines set out in the Kentucky Revised Statutes (KRS 403.212).

However, KRS 403.211(3) states that those Guidelines are to be adhered to in calculating the amount and duration of child support unless the child has extraordinary medical, dental, educational, job training, or special needs.  In that event, the court can determine that those special needs are so severe and impact the child's life to such an extent that he or she can never be self-sufficient and the parents will be required to contribute in the form of child support for the duration of the child's lifetime.

There's no question that parents raising disabled children “face an avalanche of expenses that far outstrip cost projections for a normal healthy child.” 3/  These extraordinary expenses have to be fully documented in order to ask the court to deviate from the Kentucky Child Support Guidelines. 

What does that mean?  Child support obligations can continue long past the child reaching age 18.  If you have a child who cannot become self-supporting or self-sufficient, be sure to discuss those needs with your attorney.

What about government assistance?  Does that factor into the child support equation?

If a disabled dependent child receives financial assistance from the state or federal government, those funds must be disclosed to the court and included as an offset in determining a non-custodial parent's child support obligation.

What happens if my child's condition dramatically improves?

What a blessing that would be!  If a previously dependent child is able to become self-sufficient, then it would be entirely appropriate to return to court to evaluate the situation and to re-determine the suitability, amount and duration of a child support award beyond the age of majority (18) or the completion of the high school year following the child's 18th birthday.

 

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1 Margaret S. Price, Best Practices in Handling Family Law Cases Involving Children with Special Needs, 28 J. Am. Acad. Matrim. Law (2015)

2  Merle McPherson et al., A New Definition of Children with Special Health Care Needs, 102 PEDIATRICS 137(July 1998), cited in Paul W. Newacheck et al., Children at Risk for Special Health Care Needs, 118 PEDIATRICS 334 (July 2006).

3 Ana L. Pabon, Financial Planning for Special Needs Children: A Review of Available Information for Parents, 4(2) J. PERSONAL FIN. 40 (2005).


The attorneys at Hoge Partners, PLLC will be happy to talk to you about your legal options as they are impacted by your child's special needs.  Call us today.