Divorce with a Special Needs Child

Divorce is always more complicated when it involves children. In addition to community property and spousal support issues, it will also require resolving child custody and child support matters. However, considerations in a divorce with a special needs child will be even more involved and complex. The San Diego divorce lawyers at Doppelt & Forney are well versed in the issues you may be facing under these circumstances. We provide support and legal representation to family law clients in San Diego, Coronado, Vista, La Mesa, Ramona, El Cajon, Chula Vista, Point Loma, Carlsbad, La Jolla, Del Mar, Oceanside, and all other municipalities in the greater San Diego metropolitan area on all child custody and support matters, including for families with special needs children.

California has no specific definition of what constitutes a special needs child insofar as child custody and child support law is concerned. But that does not mean California divorce law ignores special needs.

There are many types of special needs, and they encompass a wide variety of physical, psychological, or mental conditions, such as:

• Deafness
• Blindness
• Autism
• Downs Syndrome
• Paralysis
• Birth defects
• Cystic Fibrosis
• Dyslexia
• Cerebral Palsy

All of these conditions, and others, require attention when it comes to child custody and support to ensure that the medical, rehabilitative, care, and educational needs of children with disabilities are adequately met.

Child custody decisions are always based on the standard of “the best interests” of the child. In cases involving divorce with a special needs child, the decision will have to address numerous factors. Respecting physical custody—that is, where and with whom the child physically resides, as opposed to legal custody, which determines who has the power to make decisions on behalf of the child—the court will look at which parent has more experience in dealing with the special need requirements, and at the physical circumstances of the situation. For example, if special medical or other accommodations must be present in the household where the child resides, or whether it would cause psychological damage to a child to have to spend time in two different households, or to move out of an existing environment (which may also affect property division allocation in the divorce, will all be relevant factors. An experienced divorce lawyer can help you present all of the necessary information to demonstrate what kind of custody arrangement would be best for your child.

When it comes to child support, California guidelines provide only a standard formula, which focuses primarily upon the parents’ combined income. Outside of that, the law only provides that courts may deviate from the guidelines in appropriate cases, such as in cases of special needs children.

This lack of specificity for special needs is not due to a lack of concern; rather, it is due to the fact that child support requirements must be assessed on a case-by-case basis because of the extremely wide range of needs that may have to be addressed.

Support may have to encompass extraordinary expenses for things like ongoing medical care, therapy, or special educational needs. Another item that may need to be addressed is whether the custodial parent will ever be relieved of the need for spousal support, particularly if the custodial parent is the primary caregiver for a special needs child. In cases where care requirements are extensive, a custodial parent may never be able to work outside of the home to earn his or her own livelihood when caring for the child.

Moreover, when it comes to child support, in most cases, support payments terminate at a fixed point—at age 18, for example, or when a child graduates from college. But in cases of divorce with a special needs child, lifelong support may be necessary, or support may continue up to a point not defined by age but by capability or other factors. To protect the support interests of a special needs child, the court (or the parents, by agreement), may also require one or both parents to establish a Special Needs Trust, or to obtain a life insurance policy with the child as the beneficiary, so that support will not terminate upon the death of either parent.

No matter your situation, the San Diego divorce lawyers at Doppelt & Forney are prepared to provide you with legal advice and representation in your divorce to make sure that the all issues relevant to caring for your special needs child are adequately addressed in your divorce settlement. To find out how we can help, call us at 800-769-4748, or use our online form to set up a free in-person or virtual consultation.