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Custody Considerations for Families With A Special Needs Child

June 2015

There is a high separation and divorce rate among families with a special needs child. The stress level of raising a child with special needs may result in a breakdown of the parents’ relationship and the necessity of a custody or Parenting Plan to address issues relating to their child.

The guiding principle for all custody cases in Maryland is what is in the “best interests of the child.”  When making a best interest determination, consideration is given to multiple factors, including each parent’s fitness and ability to care for the child, the age and health of the child, and the ability of the parents to communicate and reach shared decisions. However, in custody cases involving a child with special needs, other considerations must be made when formulating a Parenting Plan. Parents do not automatically stop caring for their special needs child once he or she reaches adulthood. And, a schedule that requires transitions between households may not work for a family having a special needs child who requires a consistent and predictable routine. It is imperative that parents of a special needs child work thoughtfully to create a Parenting Plan that is sensitive to their child’s needs now and in the future.

Considerations for Parenting Plan for a special needs child may include:

Custody

  • Which parent is better suited and trained to care for the child on a daily basis;
  • If the child will have difficulty with transitions between households;
  • If the child can handle overnights away from his or her primary caretaker;
  • If the parents can make joint medical and educational decisions for their child;
  • If each parent’s residence is appropriate given the child’s special needs;

Support

  • The child’s pre-existing expenses, including, medical bills, therapy and medication;
  • The equipment the child needs (and the portability of the equipment);
  • The cost of modifications to a parent’s home to care for the child;
  • If a parent can work outside the home given the needs of their child (and what financial support is needed if he or she cannot);
  • The impact of government benefits on support (Social Security Income, Medicaid, Social Security Disability Insurance Benefits);

Planning for the future

  • The cost of future medical care;
  • Child support beyond the child reaching the age of majority; and
  • If a Special Needs Trust needs to be established.

It is important for a parent of a special needs child to work with a lawyer who understands the unique issues facing their family.  If you have questions about a divorce or Parenting Plan for a family of a child with special needs, please contact Ferrier Stillman.

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