If you are the parent of a child with a disability or other special needs, you know how important it is to make sure they are taken care of no matter what. The special considerations for special needs kids in custody cases and divorce mean you should never let the Court take a cookie cutter approach to your children's future. Here is what you should do to help your attorney help you get the best result for your children.

Legal Custody Considerations for Special Needs Kids

One of the first questions any Court needs to answer when it comes to children is who is going to be responsible for making important decisions about their health, education, religion, and wellbeing. These “legal custody” decisions are especially important when a child has a disability or special needs because the decisions around the child's medical treatment, special education options, therapy, and medication all fall under this umbrella.

In a normal custody case, joint legal custody is the norm unless the parties have a demonstrated history of being unable to work together for their child's benefit. However, parents of special needs kids are far more likely to disagree over their child's treatment or education. In Michigan, the courts have no authority to divide up legal custody (i.e. giving one person the final say on medicine and the other on education). That means you may need to advocate to be the one who has sole legal custody if you truly cannot agree on your child's care.

The Best Interests of the Child Looks Different for Special Needs Kids

In every child custody case and divorce involving children in Michigan, judges are tasked with putting the best interests of the child first – even above the parents' preferences. Several of the 12 best interest factors weigh differently in cases involving children with special needs, such as:

The Parents' Capacity and Disposition to Continue a Child's Education

In a special needs context, this could include which parent takes the lead in attending the child's annual Individualized Education Program (IEP) meeting or advocating for a 504 plan. It also considers who works with teachers, in-school aides, counselors, and other special education professionals to make sure your child is getting the services they need.

The Child's Stable, Satisfactory Environment

For children on the Autism spectrum, especially, maintaining a stable, satisfactory environment can take on far more weight than for neurotypical children. Changes to their environment can cause severe mental strain, and emotional and behavioral outbursts.

The Home, School, and Community Record of the Child

This best interest factor often takes a back seat to other considerations in a typical custody case. But if you have a special needs kid, how well they are performing at home, school, and in their community can become a key part of their success. This is especially true if a potential custody change or geographical move could interrupt treatments or services your child depends on for his or her day-to-day success.

Choosing a Parenting Time Schedule for a Special Needs Kid

Once a Court decides how legal and physical custody will be awarded, it has to set a parenting time schedule. This can be hard enough when balancing the schedules of two working parents and children's school and extracurricular obligations. When you add in a special needs child's therapeutic schedule, it can be tough to make sure both parents receive enough time to maintain a strong parent-child relationship.

That's why “The existence of any special circumstances or needs of the child” is the very first factor in the statute on parenting time. Depending on your child's needs, it may be best for you to negotiate and agree to a parenting time schedule out of court. That way, it can be as flexible as it needs to be to work around your child's schedule, or as structured as it can be to aid your child's ability to understand and adapt to what is happening around him or her.

Extraordinary Medical and Educational Expenses in Child Custody Cases

Another aspect of a child custody case that may look different in special needs cases is child support. In most cases, child support is calculated using a formula based on the combined income of both parents, their respective share of that income, and the number of overnights the child spends with each parent. But special needs often come with special expenses related to extraordinary medical care, tutoring, counseling or other educational costs. The Michigan Child Support Formula allows for these expenses to be divided based on the parents' respective incomes. When appropriate, the Court can also deviate from the recommended amount to make sure everything gets paid.

Other Special Considerations in Special Needs Custody Cases

In addition to the big categories discussed above, co-parenting a special needs child can raise a number of smaller, yet crucial, considerations that should not be overlooked. For example:

• Medical equipment and accommodations: Does your child have medical equipment, mobility devices, or assistive items that they need to live or travel? How will those devices be shared between households?
• Transportation: Who is responsible for transporting the child to and from therapies and treatments? Are there special considerations about when or how that happens?
• Coparenting Communication: If your child is prone to episodes, how will you notify one another when they occur? Consider using a co-parenting software and shared calendar to facilitate open communication. This could also be used for medication tracking and behavioral reports.
• Communication with Professionals: Who should the school contact when parenting time is divided? In Michigan, even when one parent has sole custody, both parents are entitled to information about their child's school and medical care. It is often up to parents to make sure every treating professional and school administrator has access to both parents and knows who has authority to receive information and make decisions.

Get Help With Special Needs Child Custody Issues from a Michigan Family Lawyer

At Bebout, Potere, Cox & Bennion, P.C., we care about you and your family. We help individuals and families in Rochester Hills, Rochester, Troy, Lake Orion, Oxford, Oakland County, Macomb County and throughout Southeast Michigan. We will take the time to understand your children's special needs, and advocate for your children's best interest. Call us at 248-651-4114 or contact us here to speak to an attorney.