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Children with Special Needs

 

Children with Special Needs in Family Law Proceedings

By Donna A. Laurent and Cari M. Pines

 

Family law courts today are increasingly dealing with issues facing families of children with special needs. Often, the marital and family dysfunction which led to the breakup of the family was compounded by the challenges inherent in caring for a child who has special needs. These children tend to require high maintenance. Ordinary parenting skills are simply insufficient to address the myriad of issues presented. These parents must become mini-experts as to their child's specific needs, and must advocate tirelessly to ensure that the child's necessary medical, educational, developmental and psychological needs are met. It is critically important for the attorneys, bench officers and professionals involved in these cases to have specialized knowledge of the issues, resources, available special needs systems, as well as the child's specific and individualized needs. The legal and physical custody orders made by family law judicial officers for these families are literally "quality of life" decisions that can drastically effect and/or substantially enhance the special needs child's daily life as well as his/her future.

 

There are a number of categories of children with special needs. These include those with chronic or life-threatening medical conditions, such as asthma, food allergies, diabetes, developmental disorders, including learning disabilities, ADHD, autism or autism spectrum disorders (Asperger's Syndrome), and psychological or behavioral disorders, such as depression, bipolar or conduct disorders. Each of these diagnoses presents unique challenges for separating or separated parents who are also dealing with the stress, emotions and changes involved in the break up of the family unit.

 

In custody disputes involving these children, first and foremost, the court must immediately be made aware of the child's individual issues, particular specialized needs, and parameters of required care. Unlike parenting plans and custody orders for "typical" children, those for special needs children must, in many ways, be micro-managed. The family law lawyer must be able to educate the court and provide information needed to ensure that the parenting plan he as detailed and comprehensive as is necessary to ensure the child's best interests are met.

 

Initially, the court will need to know if the child has been diagnosed. If so, was it self-diagnosis by a parent or by a professional? (Because many disabilities are genetically based, the parents themselves often have histories of dealing with the same or similar issues.) Are there differing opinions by various professionals? Do both parents agree with the diagnosis, or is one parent in denial (which can be critically dangerous in an asthma/allergy situation, in particular). Do the parents differ in their opinions as to treatment? Diet? Medication? Discipline? School selection? It is incumbent that the attorney highlights the extreme dangers and unique risks the child may face ii one parent fails to appreciate the seriousness of the child's special needs.

 

Often the court must consider which parent is better educated and trained in dealing with the child's needs and specialized core and to what degree each parent is involved in the treatment process and treatment options. If the child is on medication, do both parents know which medications, the dosage and times they are to be administered? Can the parent identify specific triggers or unique issues that may provoke an attack or behavioral episode? Do the parents have differing philosophical views on their child's treatment, medication or care giver?

 

Another critical issue is whether or nor the child has or needs an IEP (Individualized Education Plan). Often both parents are not in agreement about this process or one is in denial and/or worried about the child being "labeled." The unfortunate reality is that in Los Angeles County, L4USD will usually side with the parent who is in denial about the child needing special education services. For this reason, it may be necessary and appropriate for the court to award the. other parent sole legal custody as far as educational decisions are concerned.

 

The same goes for differences of opinion concerning medication. If one parent does not believe in medication and refuses to medicate the child, in spite of the fact that the child's doctors, teachers, and therapist believe medication is helping the child, it may be necessary for the court to award the other parent sole legal custody concerning medication issues. In these instances, that parent may also be awarded physical custody during all school time (Since the medication may he required for the child to concentrate).

 

Several years ago, Heidi Perryman, PH.D, developed an adaptation of a program used in the juvenile justice system for dealing with children with learning disabilities and other diagnosable disorders. Her IPP or Individualized Parenting Plan model, used in family law proceedings, requires the analysis of specific information about the particular child's functioning in a number of areas, including the child's home environment, education, extracurricular and social activities, family dynamics, medical and psychological needs, advocacy and financial needs.

 

The residence of the child who has special needs may require specific structural accommodations, such as wheelchair access or TDD phone service. The child may need his/her own bedroom to allow for a quiet, non-stimulating environment. The child's psychological needs may be such that one primary residence, in which the primary parent has established specific routines and/or other strategies to assist the child in coping are in place. The distance between the parents' residences and the child's school, physicians, and therapists should be considered. Issues for consideration may be how much time the child will spend riding in the car each week and whether the child can tolerate long commutes.

 

As previously indicated, it is imperative that the child's IEP be considered if one is in place. If neither parent can effectively advocate for the child, minor's counsel, a special master, or a parenting plan coordinator may need to be appointed to make decisions or to help parents make decisions in this area.

 

Extra-curricular activities for special needs children are often a source of conflict between parents. One parent may feel the child absolutely needs to be involved in one or more activities to develop social skills and self-confidence. This may involve a social skills class, soccer, or dance. The other parent may complain of missed custodial time during "his or her time" or the other parent over-indulging the child who may not be able to handle too much activity. For these reasons, the parenting plan should be specific regarding which activities the child is to be involved in and how each parent is to participate in those activities.

 

Other family members, and their role in the child's life, must also be considered. The attorney should consider whether the family understands, accepts and appreciates the child's special needs. Is there a step parent or step-siblings involved in the child's home? Is transitioning between a home in which the child may be the only child and a home in which there are several step-siblings too stressful? Even minor changes to a child's daily routine can be overwhelming for some children with special needs.

 

Of utmost concern must be the child's medical and psychological needs. If the parents cannot agree on treating physicians, therapists, treatment, medications, the court will have to dictate which parent has decision making authority or may appoint some other professional to provide the court with information to allow it to make decisions on behalf of the child. The child's psychological age, rather than his/her chronological age must be considered. A ten-year-old child with particular needs may be far more emotionally attached to one parent than a "typical" five-year-old. The court must be presented with proposed orders addressing all areas of concern to ensure the child's best interests are protected.

 

Children with special needs often create complex financial issues for families which raises issues of child and spousal support as well as areas of reimbursement. While many of the required services may be covered by medical insurance and/or federal and state government or school district programs, that is not always the case. An insurance company may pay for speech, occupational and physical therapy for an autistic child, but may deny coverage for desperately needed behavioral therapy. An IEP may provide for individualized treatment with a resource specialist and other professional services, but the child may additionally need a private tutor and/or group social skills training, in order to meet his/her full potential. It is also possible that a child may never be able to be self-supporting, even after reaching the age of majority, and this may require the court to extend jurisdiction over child support beyond the age of majority.

 

Families of children with special needs need specialized representation in family law proceedings. Attorneys representing these parents must be familiar with the special needs systems, must be competent to advise on when to seek further resources and assessment options, must be readily familiar with expert professionals for referral purposes and must know precisely what to request of the court to enhance the lives of these children and their families.

 

This article was published in the May 2009 edition of Valley Lawyer - A Publication of the San Fernando Valley Bar Association