This article
is intended to provide practical assistance to professionals and clients who are
dealing with a family with a child with special needs. Many of these cases are
factually complex and involve considerations that are outside of the normal
course of a divorce.
The First Step is to Not Overlook
Special Needs Considerations in Divorce or Post-Decree Issues. The number of children with
disabilities is significant. The prevalence of autism in children is now 1 in
68. (CDC 2018) There is conflicting evidence that having a child with a
disability increases the likelihood of divorce. What is known is that having a
child with special needs complicates the divorce process and requires careful
consideration of many factors in counseling and representing clients.
For many parents contemplating divorce, the first consideration when one or more of the children have a disability is how and whether they will manage the complications of parenting and supporting a special needs child. At the initial client interview, when there are children (including older children), one of the initial questions I ask is whether any of the children have special education issues or have been diagnosed with a disability. If the answer is yes, then I use a comprehensive checklist to assist me in getting a thorough understanding of the child’s needs in the context of this family. It is important to ask detailed questions about the nature of the disability. It is also a good idea to request documents (e.g. evaluations, school records, Individual Education Plans (IEP)) that provide detailed information regarding the child’s disability.
As a starting point ask whether a child receives special education services in school. Does the child have an Individualized Education Plan (IEP) or a 504 Plan? * Ask the client to describe what services (e.g. speech, occupational therapy, counseling) the child receives and request a copy of the documents as a resource regarding the needs of the child. Typically, asking for the last two years of educational records will be sufficient. The IEP and the 504 Plan will often have useful information regarding the child’s educational and related issues, including a description of how the disability impacts their functioning in school and in life. In the process of reviewing the IEP or 504 Plan, you will learn about the school district and the parent’s input into the discussion. This is relevant information when deciding who or whether a parent will be the designated parent for school district purposes, the allocation of parenting time and decision making. It also provides important data about the severity of the child’s needs and may signal a discussion regarding a departure (upwards) from guideline support. In addition to the school documents, requesting a copy of any evaluations provides yet another source of relevant information. In addition to the IEP, I ask the client to provide me with a list of treatment providers and other resources.
It is not
uncommon parents to disagree about the nature and severity of the child’s
disability. Determining whether the parents are in agreement about the special
needs of the child and the current interventions is an early essential step since
it may shape the way you discuss and counsel your client regarding the
Allocation of Parenting Time and Decision Making. If the parents are in
substantial disagreement about what the child’s needs are, this may make shared
decision making inappropriate. Asking the client whether they are able to work
together with the other parent and cooperate concerning their child is an
essential early inquiry.
Reviewing
the statutory language in 750 ILCS 5/602.5 is a starting point for the
allocation of parental responsibilities and decision making. The statute states
in subparagraph(a) that the court shall allocate decision-making
responsibilities according to the child’s best interests. Nothing in the Act
requires that each parent be allocated decision-making responsibilities. The
significant issues that the statute refers to when considering an allocation of
parental responsibilities and decision making are as follows:
Those
significant issues shall include, without limitation, the following:
(1) Education, including the choice of schools
or tutors.
(2) Health, including all decisions relating to
the medical, dental, and psychological needs of the child and to the treatments
arising or resulting from those needs.
(3) Religion, subject to the following
provisions:
(4) Extracurricular activities.
(c) Determination of child’s best interests.
In determining the child’s best interests for purposes of allocating
significant decision making the court shall consider all relevant factors,
including without limitation the following.
(1) the
wishes of the child; (not an absolute) (2) the child’s adjustment to his or her
home, school and community; (3) the mental and physical health of all
individuals involved; (4) the ability of the parents to cooperate to make
decisions, or the level of conflict between the parties that may affect their
ability to share decision- making; (5) the level of each parent’s participation
in past significant decision-making with respect to the child; (6) any prior
agreement or course of conduct between the parents relating to decision-making
with respect to the child; (7) the wishes of the parents; the child’s needs;
(9) the distance between the parents’ residences, the cost and difficulty of
transporting the child, each parent’s and the child’s needs; (10) whether a
restriction on decision-making is appropriate under Section 603.10.
The cases
interpreting this statute and its predecessor are very fact specific and tend
to give unequal weight to each of the factors depending on the circumstances of
each case. No one factor appears to be controlling in the appellate decisions.
Clearly, it is in the child’s interests for both parents (if appropriate) to
share decision making and parental responsibilities in a way that works for the
individual family and keeps the child’s best interests front and center.
It is presumptive
under the Section 602.7 (b) that both parents are fit to have unrestricted
parenting time. However, determining early on whether the parents are in
agreement regarding the needs of the child and the caregiving arrangements is
critical. Reviewing with your client the factors set out in 750 ILCS 5/602.7
(b) (1) and the issues presented by their special need’s child provides a
framework for decision making and drafting of the Parenting Agreement and
Allocation Judgment. Parents may disagree on what is in the best interests of
their child with a disability. For example, a consideration of whether one
parent has and will continue to be the primary caregiver impacts all aspects of
the case. In my practice it is common that one parent has taken on the role of
case manager in medical and educational decision making. This parent has been
the one on the ground every day managing the complex decisions for the child.
Judges should be made aware of the roles historically played by each parent as
a pivotal consideration in allocation of decision making.
In many
cases the parents can no longer afford for one parent to be underemployed or unemployed
following the divorce and the resulting separate households. Clients may be in
agreement about the needs of the child but may have more difficulty determining
a schedule that works in the new family configuration. Standard parenting plans
rarely fit children with disabilities. Therefore, the allocation of parenting
time may require creativity, flexibility and a lawyer who is familiar with the
challenges of the individual child’s disability. For example, some children (even
non-disabled children) struggle with transitions and that needs to be accounted
for in any allocation of parenting time. This makes a presumed equal parenting
schedule inappropriate if this arrangement won’t be in the child’s best
interest.
No child
with a disability is the same. In counseling clients it is important to avoid
relying simply on a label as short hand for a description of the child. Details
matter. Even if parents are fully cooperating and aligned with their child’s
needs, if there are other children, this may require parents to navigate
different parenting schedules to accommodate the needs of the entire family.
See In re Marriage of Capella, 2018
WL 310 5765, Ill. App. 5th District (July, 2018) [not for a child
with special needs] for an analysis of the application of the statutory factors
in the allocation of parenting time.
Special
Education Issues:
Residency: In cases of divorced or
separated parents when only one parent has legal guardianship or custody, the
district in which the parent having legal guardianship or custody resides is
the resident district. When both parents retain legal guardianship or custody,
the resident district is the district in which either parent provides the
student’s primary regular fixed night-time abode resides; provided that the
election of resident district may be made only one time per school year. 105
ILCS 5/14-1.11.
750 ILCS
5/606.10 Designation of custodian for purposes of other statutes.
Solely for
the purposes of all state and federal statutes that require a designation or
determination of custody or a custodian, a parenting plan shall designate the
parent who has the majority of parenting time. This designation shall not
affect the parent’s rights and responsibilities under the parenting plan. For
purposes of Section 10-20.12b of the School Code only, the parent with the
majority of the parenting time is considered to have legal custody.
When both
parents share educational decision-making and agree on the needs of the student
it is easier to navigate the special education process. Urging parents who may
be conflictual in other areas to attempt to cooperate in the educational realm
makes it more likely that the educational needs of the child will be met.
Students are eligible for special education beginning at age 3 through the day before their 22nd birthday. For more severely disabled students, remaining in school as long as possible makes sense in order to take advantage of the additional time to receive services and interventions
the special education provides them before “aging out”.
Child Support:
The statutory amount of child support may be insufficient to meet the needs of the child with special needs. Frequently, both parents are already spending well above the costs associated with typical children. Many disabled children require specialized care that may not be covered by insurance and results in significant out of pocket expenditures for the family. For example, in cases where a child is on the autism spectrum, insurance may or may not cover the necessary interventions.
In this situation, it may be appropriate to discuss with the parties, and if necessary, ask the court to make a finding for a deviation from statutory guidelines. Under 750 ILCS 5/505, Section 3.4) Deviation Factors reads as follows: In any action to establish or modify child support, whether pursuant to a temporary or final administrative or court order, the child support guidelines shall be used as a rebuttable presumption for establishment or modification of the amount of child support. The court may deviate from the child support guidelines if the application would be inequitable, unjust or inappropriate. Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation. These reasons may include:
(A) Extraordinary medical expenditures necessary
to preserve the life or health of a party or a child of either or both of the
parties;
(B) Additional expenses incurred for a child
subject to the child support order who has special medical, physical, or
developmental needs; and
(C) Any other factor the court determines should
be applied upon a finding that the application of the child support guidelines
would be inappropriate, after considering the best interests of the child.
In gathering
information relevant to a request for a deviation from guidelines, you should
ask your client to produce invoices for treatment providers, a schedule of the
child’s day, including travel to outside therapists, number of hours of care
each day and the specifics of those interventions.
750 ILCS 505.2 provides for the provision of health insurance in
addition to child support obligations.
Typically,
child support terminates at age 18, to the earlier to occur of graduation from
high school or age 19, if the child is still attending high school at age 18.
However, children who would otherwise be emancipated may require ongoing
life-long support.
Non-Minor
Children with a Disability
750 ILCS 5/513.5 governs the issues related to support for a non-minor child with a disability. To be “disabled” for purposes of § 513.5, the child must have a “physical or mental impairment that substantially limits a major life activity” and is either generally regarded or has been recorded as having the impairment. § 513.5 (c). Disabled for purposes of the § 513.5 is not necessarily the same as “disabled “ for the purposes of the Probate Act, and it is not a prerequisite that the child first be declared disabled in a probate court proceeding.
The factors
that the court must consider in making an award under 750 ILCS § 513.5 include
both parent’s financial resources to meet their needs including retirement
savings, the standard of living had the marriage not been dissolved, the
child’s financial resources, and any other resources, such as government benefits.
§ 513.5(b). In two unpublished orders under Rule 23, the Second District
discussed the factors that should be considered in awarding post majority
support. See In Re Marriage of Wolf and Wolf,
(2017 IL App (2d) 161109-U. Also, See, In
Re Marriage of Hemphill v. Robert Hemphill, 2017 IL App. (2d)
160833-U. In Hemphill, the court held that the trial court’s
finding that the parties 20 year- old daughter was disabled was not against the
manifest weight of the evidence. The court did not abuse its discretion when it
ordered the father to pay non-minor child support and all uncovered medical
expenses.
There are
many unique concerns that must be addressed in a divorce settlement regarding
special needs children. As the child reaches majority it is essential that the
divorce agreement be structured so that the child does not lose his or her
eligibility for SSI and or Medicaid or other needs-based benefits. If one
spouse receives support for the benefit of the special needs child this may
impact the child’s ability to receive benefits. At the time of the divorce, it
is essential to anticipate, structure and carefully draft language to allow for
continued “support “in a Marital Settlement Agreement. This can be done in a
number of ways, specifically, the parties can arrange for a Special Needs Trust
to be created for the benefit of the child. If the divorce pre-dates the
recognition or identification of the child as one with a disability, the
parties may need to amend their child support agreement to prevent an adverse
impact on government benefits. For all clients, it is important to discuss
potential and necessary modifications to their estate planning document.
I recommend
the use of a checklist in counseling clients with children who have
disabilities and in drafting Parenting Plans and Allocations of Decision Making
as well as the Marital Settlement Agreement.
CONCLUSION: Given the high incidence of families with children with disabilities it is essential to be aware of the unique considerations faced by divorcing families to ensure that the rights of the parties, most importantly, the children are addressed in this context.
Share on Facebook
