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.