Verified by 
Key points
- Divorce with special needs children involves unique custody and financial challenges.
- Custody decisions must consider the child’s medical, therapy, and educational needs.
- Financial support often includes lifelong care costs beyond what is typical in child support decisions.
- Divorce can affect special needs children's eligibility for government benefits.
Divorce is hard enough. It can be an emotionally and financially draining process, especially when children are involved. But for parents of children with special needs—including those with autism and other learning differences—or with chronic medical issues, the challenges around divorce can be particularly daunting.
While it is complicated and sometimes difficult to talk about, understanding the legal complexities specific to families of special needs children is important. It’s essential for ensuring your child’s well-being and the fair allocation of responsibilities between the parents.
As a family lawyer, I help families work through the seemingly vast emotional and logistical considerations that can arise during divorce. Here are a few of the most important legal issues to consider regarding divorcing when you have special needs children:
Custody and Visitation
In traditional divorce cases, custody decisions are typically based on factors such as parental fitness, the child’s best interests, and the child’s preferences, if they are old enough to express them. However, special needs children often require specialized care and support that can significantly impact custody arrangements.
For example, one parent may have been the primary caregiver for the special needs child over the course of their child’s life thus far, likely sacrificing career opportunities or personal pursuits to provide the necessary care. (See more on appropriate financial support below.)
When considering custody arrangements, courts must take into account the unique needs of the child, including medical requirements, therapy sessions, and educational support. Additionally, courts may need to consider which parent is better equipped to meet these needs and provide the appropriate level of care and support.
In many families, custody will need to be determined for the presumed entirety of the child’s life. This is a significant issue and must be addressed directly by both co-parents. The court may consider which of the parents is more likely to follow the guidance of medical or educational professionals involved with the child and which of the parents is more likely to refuse to do so. If a parent is unwilling to follow the guidance of the professionals involved without good cause, then this may be an indication that that parent is not best suited to be the custodial parent for purposes of decision-making or physical custody.
Decision-making
There may be many decisions that need to be made on an ongoing basis to support the child. Who is making the decisions, how much latitude there might be for one co-parent to make decisions over the other, and other precise directions need to be clearly outlined in the divorce agreement. Sometimes, it is necessary to have one parent make the decisions after meaningful consultation with the other parent. Therefore, another important factor is which parent is more likely to consult and consider the other parent’s views when making major decisions on topics such as education, therapy, and testing.
Financial Support
The determination of child support is another crucial legal issue in divorces involving special needs children. This can be more complex than it is for neurotypical children due to the additional expenses associated with their care. These expenses may include the above-referenced medical bills, therapy costs, specialized equipment, and educational accommodations. Courts may need to consider these extra expenses when determining the amount of child support owed by each parent.
Moreover, the financial responsibilities of caring for a special needs child often extend beyond the child’s minority years and into adulthood. In some cases, special needs children may require lifelong care and support, necessitating ongoing financial arrangements between the parents. Establishing a fair and sustainable financial plan to meet the long-term needs of the child is essential for ensuring their well-being and quality of life.
Understanding Social Services
In addition to custody and financial issues, divorcing parents of special needs children must also consider the implications of their divorce on government benefits and support services. Many special needs children rely on government assistance programs such as Medicaid, Supplemental Security Income (SSI), and special education services provided by school districts. Changes in parental income or household composition resulting from divorce could affect the child’s eligibility for these benefits and services.
Legal Guardianship
Finally, divorcing parents may need to establish legal guardianship arrangements for their special needs child, particularly if the child is unable to make decisions independently due to cognitive or developmental disabilities. Appointing a guardian can ensure that someone is legally responsible for the care of and decision-making for the child.
And this is just the beginning. As parents with children with special needs know, their commitment is for the long haul. So, being able to communicate with your co-parent is going to be crucial, not only now but in the years to come.
As I always say, please seek out legal and mental health help for you and your family, as taking care of yourself and your children is most important during this incredibly difficult time.
Note: This post is not intended to serve as legal or financial advice. Each situation is unique. Please speak with a local financial professional or attorney to address your issues specifically.
