Children With Special Needs

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When a child custody matter involves a child with special needs, the unique characteristics of the child's situation must be taken into consideration. This can include medical and mental health issues, physical disability and individualized care-taking, IEP's and educational issues,  as well as Social Security benefits, among other things. 

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If your child has special needs, it is important to thoughtfully address child custody, parenting time, and the vast number of unique financial aspects involved to ensure that your child has the proper support and specialized attention he or she needs. For instance, if you are your child’s primary caretaker, you may be unable to work and earn an income to provide for yourself and your child. New Jersey state child support guidelines do not take into consideration special needs and direct child support payments may interfere with SSI and Medicaid eligibility. One strategy that you will have to investigate with your attorney is whether in-kind or direct payments to medical and service providers or creation of a Special Needs Trust is needed. A Special Needs or Supplemental Needs Trust can be an effective means to shelter monies used for specialized expenses beyond basic needs of the child - such as special camps, caretakers, and extraordinary medical expenses, as well as smaller items like cable television or vacations - and to protect critical SSI and Medicaid eligibility.

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With regard to physical parenting time and custody, it is often that special needs children require consistency in their home environment. Some children have specialized home equipment or modifications that make changing locations for parenting time impractical, even dangerous. Moreover, medical insurance usually only pays for one set of equipment, making it cost prohibitive to set up two location able to meet the child's particular needs. These and many other issues need to be addressed so medical equipment may need to be shared or stay in the main residence. And there may come a point where the child's residence in either parent’s home is not appropriate or feasible. Consideration will need to be made as to where your special needs child must be placed (i.e. a psychiatric facility, group home, nursing home).

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Sometimes overlooked is the impact such decisions made regarding the special needs child will have on any siblings. It may, therefore, be critical to set up a parenting time plan where any non-special needs children have “separate” time with each parent so that they do not feel ignored.

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A final consideration with regard to divorce with special needs children is your estate planning. In addition to the creation and management of special trusts, as noted above, you likely will need to change named trusted helpers such as trustees, executors, power of attorney agents, and guardians.

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Return to Custody and Parenting Time

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