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Custody and the Special Needs Child

“Best interests” is never a one-size-fits-all determination, but if a child has special needs, a determination of what is in a child’s best interest is even more complex.

Participating in custody litigation can be a very stressful time for a parent or caregiver, not to mention the child. Whether negotiating, mediating, or litigating, determining what is best for a child when the parents or caregivers do not live together requires consideration of many facets of the child’s and parents’ lives. But when a child has special needs — whether medical, emotional, or educational — there are additional considerations that require special attention.


If parents have been living together, the mere act of separating and creating two households could impact a child’s progress, possibly resulting in regression. The management of therapies or medications passing between homes certainly possess the potential for missed appointments or medicine. Communication between two parties in different households is always important, but for parents of a child with special needs, it is critical.


“Best interests” is never a one-size-fits-all determination, but if a child has special needs, a determination of what is in a child’s best interest is even more complex. For a child with an Individualized Education Plan (IEP), for example, questions about schooling are particularly relevant and can significantly impact that child’s well-being. For a child with medical or emotional needs, issues concerning medication and therapies frequently arise and directly bear on the best interests of the child.


For parents of a child with special needs, “traditional” custody schedules may not benefit your child. Thinking outside the box may result in a more stable situation for your child. For example, perhaps “nesting,” where the child stays in one home and the parents move in and out of the home on a set schedule, would work well for your child. Alternatively, one parent could serve as the primary custodial parent with the other parent having daily contact by taking the child to school every morning or to therapy every afternoon.


If you are a parent or caregiver involved in custody litigation concerning a child with special needs, it is imperative that you surround yourself with professionals who are knowledgeable about all the potential considerations which apply to your child. A knowledgeable developmental pediatrician can offer insight into medications, therapy, treatment plans and alternative avenues.


Benjamin Hinerfeld, a special education lawyer at Kershenbaum & Raffaele in Philadelphia, also identifies that “when parties are involved in a custody matter, it is important that parents specify within any agreement or court order who will be the primary education decision-maker. A family lawyer who also has experience with education law would know the value of this provision.” It is always important to pick a knowledgeable lawyer — whose primary practice is family law — when you are facing custody litigation. When your child has special needs, it is vital that you choose an attorney who understands those needs, can articulate those needs to the court, and can help formulate and present options to meet your child’s needs.


In addition to custody issues, caring for a special needs child may require certain financial considerations. The added cost of therapies, medications, and other adaptive resources must be taken into consideration when calculating child support. If one parent serves as the main custodial parent, his or her earning potential may be affected because of the added demands of raising a special needs child, such as taking children to appointments or providing round-the-clock care. These issues must be addressed by the court or in any settlement agreement.


Custody negotiation and litigation can be nerve-wracking. Children will invariably be impacted, and all parents should stay focused on their children first and foremost. For parents of a child with special needs, it is particularly important to co-parent effectively and work well together to give your child the full opportunity to be his or her very best.

Berner Klaw & Watson


Written by Partner Megan Watson. Megan employs her knowledge of education law to assist clients who have children with special needs to maneuver through custody litigation.

Berner Klaw & Watson (BKW) assists clients with all family law related issues including, but not limited to, custody, divorce, support, adoption and domestic violence. The firm also offers alternative dispute resolution services such as mediation, collaborative law and arbitration. BKW values all families and works regularly with the LGBTQ community as well as “non-traditional” families such as grandparent caregivers. Learn more at www.bkwfamily.com