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Ringlespaugh: Custody issues for parents of special-needs children

January 13, 2016
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Indiana Lawyer Focus
ringlespaugh-cassie-mug Ringlespaugh

Each year, millions of married couples with children file for divorce. While divorce can be trying on everyone involved, there are particular challenges for parents who have children with disabilities. Overall, most researchers have found that parents of children with disabilities are much likelier to divorce. A child with a disability has multiple needs that often require parents to learn about and deal with multiple third-party providers, including but not limited to schools, specialists, doctors and therapists. These parents are often faced with significant expenses that parents of typical children never have to consider. Therefore, when deciding child custody in a situation involving a child with special needs, it is important for the courts, parents and attorneys to consider how these situations differ from families that do not have children with disabilities. 

Child custody issues for parents of special-needs children require careful consideration. Indiana law bestows different legal rights to parents depending on whether they have physical or legal custody of their child.

In Indiana, the parent with legal custody has the authority to make decisions in three main categories: major medical decisions, educational decisions and decisions regarding the child’s religion. Parents can have joint legal custody, or one parent can have sole legal custody. Legal custody becomes even more significant when a child has a disability, as there are a multitude of medical and educational decisions that will need to be made by the child’s legal custodian, sometimes on short notice.

When determining legal custody for a child with special needs, it is important to consider the frequency in the selection of doctors, specialists or evaluators as well as the frequency of required medical care and expenses – and each parent’s availability to facilitate the same. Additional considerations for the legal custodian include the potential placement of the child into specialized programs or the need for special education services in the child’s school.

The legal custodian also has the authority to decide a child’s school district. However, this becomes more complex in cases where parents share legal custody. If the parents live in different school districts, Indiana law allows parents to choose which school district the child will attend by filing an election (see Indiana Code 20-26-11). This is important for parents of children who qualify for special education because a child’s school of legal settlement has certain responsibilities and obligations to a child with special needs under state and federal law. Schools that receive federal funding (all public schools and some charter schools) are required to provide a free and appropriate public education and are responsible for identifying a child who may have special education needs, evaluating that child, and providing research-based accommodations to support the child to succeed academically.

Joint legal custody can pose problems for parents of special-needs children when disputes arise. Courts are often used to settle disputes. However, the number of decisions to be made and the speed of response that is often necessary for children with disabilities can make this remedy ineffective in meeting the best interest of the child. This reinforces the importance of parents, lawyers and judges to consider more than just the typical factors in deciding legal custody of special-needs children.

Physical custody also can pose challenges for parents of children with special needs. When there is a dispute of which parent should have physical custody of a child, Indiana utilizes the “best interest of the child standard” to decide which parent should have primary physical custody. However, these factors tend to be generalized to accommodate the “typical” child. For example, the number of transitions required for an equal parenting time order can pose a large issue for children whose disabilities substantially affect the child’s ability to cope with frequent transition and changes in schedules. These types of plans may be impractical or detrimental for a child with a disability. As a former teacher, I can personally attest to the turmoil that can result when a child with autism is subject to the even the smallest changes in schedule. For children with autism, rigidity and predictability should be favored over equal parenting time and frequent transitions.

There are several other factors that should be considered in deciding physical custody of a child with special needs. While it is impossible to list them all, other factors to consider that may be overlooked are potential issues with transition of specialized equipment for a child with disabilities; transportation factors for the child considering each parent’s availability and work schedule; the parent or caregiver’s training in medical equipment or specialized therapies for the child; the parents’ familiarity with third-party providers; or even the other individuals residing with the parents in their homes. In custody matters, it is important to discuss the unique needs for children with disabilities and ensure each parent is fully equipped to care for that child. Parents and legal representatives need to consider how the child will be affected when determining physical custody, including how that child’s disability may exacerbate different stresses resulting from different parenting time schedules.

Legal and physical custody issues involving special-needs children can best be resolved when the divorcing parties work together. If parents cannot agree and the court needs to make the decision, it’s important for parents and lawyers to work together to educate the court on the child’s unique needs. This may mean the two parties work together on the submission into evidence of Individualized Education Programs or Behavioral Intervention Plans, school records, and progress reports. Regardless of the dispute and the complexities in custody issues of special-needs children, the importance of meeting the best interests of the child is always the priority in family law matters.•

Cassie Ringlespaugh is a family law attorney at Cohen & Malad LLP. She has a special interest in child issues including education law. She can be reached via email at CRinglespaugh@cohenandmalad.com. The opinions expressed are those of the author.

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  • Disagreement if there is special needs
    As a parent of a special needs child, I have gotten more than my fair share of special needs divorce cases. The two issues that I did not see raised in this article are what to do when one parent agrees the child is special needs and the other does not. This usually comes up in the area of mental/emotional problems and not intellectual. The other is when one parent wants to use conventional approaches and the other wants to use non traditional methods, ranging from pro-biotic diets to homeopathy to faith healing. I would like to see peoples take on these issues.

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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