For parents of children with special needs, whether those needs come from a physical disability or a behavioral disorder, the stress of going through a divorce is amplified.
Concerns for stability in the child’s life and his or her future well-being can complicate the process, but attorneys and mediators said there are many measures that can help ensure the child’s needs are prioritized.
While recent trends in family law have leaned toward a collaborative, non-adversarial approach to the divorce process, in cases involving children with special needs, the ideal solution for the child might run contrary to the type of compromise that parents typically aim for, said Rockville lawyer David Bulitt.
Bulitt, a principal at Joseph, Greenwald & Laake P.A., has considered the issue from many angles: he often represents parents in contested custody cases, but he also serves as a best interest attorney for children in divorce cases and as a family law mediator.
His experience handling cases involving children with depression, learning disabilities or attention deficit hyperactivity disorder have taught him that compromise doesn’t always yield the best outcome.
An alternating custody arrangement with a mid-week overnight stay, for example, is far from ideal for children with behavioral problems who have trouble remembering to bring home their school assignments on a daily basis, said Bulitt.
“Regardless of their age, these kids have very, very difficult times adjusting to change, and very difficult times adjusting to moving back and forth,” he said. “If you don’t really understand or take the time to listen to your clients or do a little research, you’re going to be doing this kid a great disservice.”
Striking that balance between accommodating the child’s needs and advocating for a parent’s wishes can be difficult in contested cases, however.
If he’s representing the nonprimary custodial parent, Bulitt said, his job is to prove to the judge that the parent is just as capable of providing for the child’s special needs. This means ensuring the parent meets with the child’s teachers, creates an organized environment at home and takes other steps to demonstrate commitment.
“If I’m the lawyer representing that parent, I want to show that my client can show the same level of support,” he said. “I would put a lot of responsibility on that parent and say, ‘This is what you have to do, this is your homework. We’re going to have to show, if the child has these special needs, that you can provide the same support, the same structure.’”
Concrete parenting plans
Of course, that supportive structure will only hold up if both parents can come to a consensus on the most important aspects of the child’s everyday life.
For example, a child who is on medication to treat a behavioral problem or emotional disorder cannot go on and off the medication based on whether the parent he’s staying with at the moment believes he should be taking it — consistency is key, Bulitt said.
The child’s future living arrangements make up another area in which attorneys and mediators can help by providing an outside perspective, said John Spiegel, of The Mediation Office of John Spiegel and Donna Duquette in Rockville.
In one case he helped mediate, Spiegel said, the parents thought their son might be able to commute from one parent’s home in Rockville to his school near Alexandria, Va. For a teenager with ADHD, taking a complicated metro or bus route to school was not a reasonable option, he said.
“It didn’t adequately take into account the difficulties he would have given his special needs,” Spiegel said. “Sometimes the professional mediator or attorney can play a helpful role in thinking about how realistic certain plans are.”
Lawyers need to emphasize the importance of a concrete parenting plan that will govern how issues like these will be handled, Bulitt said, even if it’s difficult for parents to see eye-to-eye.
There are ways to keep the divorce process civil without sacrificing the child’s well-being, such as mediation, Spiegel said.
“For all children, exposure to parental conflict — as almost inevitably happens in litigation — is detrimental,” he said. “But for special-needs children, it may be even more disturbing because they need that supportive structure around them. I think there is more incentive when there are special-needs children involved to resolve the divorce without an adversarial process.”
But during mediation, it’s important to ensure the desire to come to an agreement doesn’t steamroll over the child’s needs, Bulitt said.
“In the mediation environment, sometimes the lawyer has to do what he or she doesn’t want to do,” Bulitt said. “When you’re trying to settle a case, it’s like a snowball on top of a hill — ‘we’re getting there, we’re getting there’ — but the snowball can sometimes roll over some of these kids on the way down. ‘Let’s get it resolved’ takes over ‘hold on a second.’”
Convincing the judge
It’s not just the parents that a family lawyer needs to be concerned about — it’s also the judge, Bulitt said.
Just as it’s the attorney’s responsibility to make sure the parent he’s representing takes the child’s needs into consideration, it’s also his duty to educate the judge on the child’s situation, he said.
Because some members of the bench aren’t going to be familiar with the requirements of special-needs children, in a contested case, a lawyer must be able to demonstrate the advantages to the child of a particular family arrangement.
“You have to understand and be able to spoon-feed to a judge why a 50-50 division of time that the judge may default to, you have to spoon-feed why this is bad,” he said. “The way to do it in a respectful way is to educate the judge through teachers, mental health experts, even testimony from friends.”
Teachers make excellent witnesses to prove this point to a judge, Bulitt said. They work with the child on a daily basis, and are able to recount how often he comes into class with incomplete homework or can’t remember where he left his textbook. This shows a judge how necessary a stable living situation is for a child with ADHD or a learning disability, he said.
As important as the stability of a child’s home life is during a divorce, it’s equally important to think about the future, several lawyers said.
In any situation involving children with special needs, financial arrangements will be an important part of the divorce proceedings.
Parents of children who are considered disabled under the Social Security Act should ensure their child is able to collect public benefits, not only as a child but also in adulthood, said attorney Jason A. Frank, of Lutherville-based firm Frank, Frank & Scherr LLC.
One way for parents to do this is to consider setting up a special needs trust for the child, he said.
Many people realize that child support and alimony paid directly to an ex-spouse may be treated as income to that spouse, and can affect eligibility for public benefits.
However, in Maryland, a parent’s obligation to support a disabled child does not end when the child turns 18, Frank said. In a practical sense, this means that if a parent is paying child support, those payments may continue after the child’s 18th birthday.
Once the child has reached the legal age of adulthood, the child support payments are treated as unearned income to the child — and that can substantially decrease or even eliminate the amount of public benefits, such as Supplemental Security Income, for which the child is otherwise eligible.
“It’s very challenging to live on public benefits. It’s a fixed income, often a low income, and public benefits might not provide for everything someone might need,” said Mary O’Byrne, a partner at Frank, Frank & Scherr who handles special needs and estate planning.
With a special needs trust, the parent deposits money into the trust. The child would not have direct access to it, but the trustee — who may in fact be the parent — can use it to provide for the child’s needs beyond the basics of food and shelter.
The special needs trust (sometimes called a supplemental needs trust) is useful for any child who eligible for SSI, as it prevents the dollar-for-dollar offset that is triggered after the first $20 of unearned income in a year. It is especially important if the amount is enough to eliminate SSI eligibility altogether, as that is a prerequisite for many other benefit programs.
“Many public benefits have financial tests — they’re ‘means-tested’ — and so special needs trusts are a vehicle to shelter resources so they don’t count toward the limit,” O’Byrne said.
That intersection of family law and trusts and estate law can provide a solution for many families, Frank and O’Byrne said.
“A lot of my clients are families who come to me for planning for a child who is disabled, whether that’s because the child is approaching 18 or [the parents’] marriage is dissolving,” O’Byrne said. “It’s always important for an attorney in any line of practice to be aware of whether or not their client has a disability and if they’re receiving public benefits, because there may be consequences from financial decisions that don’t take into consideration what someone’s need for benefits may be.”