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Ringlespaugh: Custody issues for parents of special-needs children

January 13, 2016
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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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