Special Needs Education Dispute Resolution

By Sherri Donovan

(Published by Mediate.com January 2013)

Caring for a special needs child involves an often overwhelming lifelong commitment that introduces an added strain to the parents’ own relationship, which can increase the likelihood of divorce. Mediation can be especially valuable to divorcing parents of a special needs child—both during and after the divorce process itself.

The resolution of those issues integral to a divorce agreement, including child custody and support, parental access, spousal support and property division, is inevitably more complex when special needs children are involved due to the uncertainty of the nature and cost of the child’s future needs and expenses. In addition, parents will often differ with respect to their own perceptions of the child’s diagnosis and needs, thus adding further opportunity for conflict.

Post-divorce, joint decision-making regarding the child’s care and education continues to require frequent and in-depth communication between co-parents. Selecting and working with medical, therapeutic, benefits and education professionals can be a time consuming, ongoing task without any clear choices. Further, special needs children may require an extraordinary amount of financial support, even into adulthood.

Parenting plans should be tailored to accommodate the child’s needs, and parents must be willing and able to adapt the plans accordingly over time as their child develops. Processes for conflict resolution and modifications should be discussed ahead of time and outlined in the agreement. Consultations with the child’s medical and educational providers can be invaluable in helping to determine the child’s needs should parents disagree. Consistency may be especially beneficial to a special needs child and parenting agreements should be detailed and spell out essential information and instructions to ensure that both parents agree as to the methods of managing the child’s behaviors, treatments, diet, environmental needs or preferences. Parents of a special needs child need to become skilled at specialized caretaking, and may also need to ensure that both parents’ homes are properly equipped.

Anticipated costs for medical care, prescriptions, therapy, testing and assessments, special and/or private education, tutoring, vocational training, equipment, assisted living arrangements and supplemental income must be considered at the time of divorce. Public benefits available to the child must be examined and the effects of child and spousal support or assets held by the child on such benefits must also be carefully analyzed. If one parent is carrying the bulk of the caretaking burden, that parent’s diminished capacity for earning income and contributing to retirement funds must also be considered when determining support and property division issues.

Government benefits and legal child support obligations may terminate once the child reaches the age of majority, however the adult child may continue to require supplemental support from parents. While many states in the U.S. have enacted legislation that permits a court to order continued support for individuals unable to live independently due to a mental or physical disability, many states obligate parents to provide financial support only until the child reaches 18 or 21 or graduates from high school. Parents may wish to consult a divorce financial planner to help determine projected costs and to discuss the establishment of a special needs trust at the time of divorce. A special needs trust enables disabled persons to have an unlimited amount of assets set aside for their needs without disqualifying them from government benefits.

Parents who are willing to engage in a collaborative, cooperative divorce process can benefit from the personal attention, privacy and financial efficiency of mediation. A mediator can help parties contain destructive patterns of behavior that could be exacerbated by adversarial litigation by maintaining focus on the needs of the child. Post-divorce, a neutral familiar with the parenting agreement, the family dynamics and needs, and the other professionals involved can reduce the potential for conflict between parents and resolve conflict more efficiently when it does arise. An objective neutral such as a mediator or parenting coordinator can be kept on standby to help with decision-making and communication, to help manage developments, modifications and agreements, and to serve as a “hub” for the various professionals involved in the child’s life.

Divorce can be a time of stress, crisis and conflict. It is important for all parents to keep the best interests of their children at the forefront during this process. It is even more critical for parents of special needs children to emerge from their divorce with the ability to communicate in a healthy and cooperative manner so as to prepare them for a potentially lifelong co-parenting relationship. Mediation offers parents of a special needs child a unique opportunity to establish a more sustainable process of communication and dispute resolution that will be beneficial during the divorce and that will be needed beyond the divorce.

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About sherridonovan

Matrimonial & Family Attorney. Mediator and Family Coordinator.
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