The Special Needs Child and Divorce

The author, Margaret “Pegi” S. Price, JD, is a professor and lawyer. Before going into full-time academia, her practice was limited exclusively to the practice of family law— divorce, paternity, child support, custody and visitation, guardianships, and adoptions. Pegi is a past chair of the Family Law Section of the Bar Association of Metropolitan St. Louis and was a member of AFCC, the Association of Family and Conciliation Courts, and of the National Council on Family Relations (NCFR). Pegi has written many legal articles on family law and other topics. She presented a paper and was a speaker at the 2006 World Autism Congress in Cape Town, South Africa, on the subject of divorce and families with autism. Pegi has also spoken on the subject of divorce and families with autism at the National Conference of the Autism Society of America and at regional legal community conferences and seminars for educators and professionals in the special needs community.

Contents

Author’s Note ix

About the Author xi

Acknowledgments xiii

Introduction xv




CHAPTER 1

What Are Special Needs? 1

I. Legislation Regarding Disabilities 2

II. Evaluating Special Needs in Family Court Cases 3

III. Case Management for the Courts 6

A. What Types of Special Needs Can a Child Have? 7

B. How Can the Lawyer or Judge Know When a Particular

Case Should Be Considered a Special Needs Case? 10




CHAPTER 2

How to Recognize and Handle Issues of Special Needs

in Family Law Cases 11

I. The Initial Client Interview 12

II. Drafting Divorce Petitions and Answers 17

III. Additional Litigation Stages 35

A. Interrogatories—Standard Question for Form Interrogatories 35

B. Discovery in General 36

C. Maintenance/Alimony Calculations 52

D. Parenting Plan 53

IV. Posttrial Motions 80

V. Undiagnosed Special Needs 84

A. Indicators That an Evaluation May Be Necessary 85

1. Autism 85

2. Hearing Deficits 86

3. Visual Deficits 86

4. Mental Retardation 87

5. Learning Disabilities 87

6. Attention-Deficit/Hyperactivity Disorder 89

7. Emotional Disturbances 90

8. Orthopedic Impairments 92

9. Multiple Disabilities 92

10. Traumatic Brain Injury 92

11. Other Health Impairments 93

VI. Recognizing and Applying Special Needs to Divorce Cases 93




CHAPTER 3

How Special Needs Can Affect a Child in a Divorce Case 95

I. Treating Children with Special Needs during Divorce 96

A. During the Divorce 97

B. After the Divorce 97

II. Impact of Divorce on Special Needs Children, by Category

of Special Need 98

A. Autism, Developmental Delays 98

B. Hearing Impairment, Visual Impairment, and Speech

or Language Impairment 98

C. Emotional Disturbance 99

D. Mental Retardation, Traumatic Brain Injury 99

E. Orthopedic Impairments, Other Health Impairments 99




CHAPTER 4

Why Child Support Guidelines and Standard Visitation Schedules

Do Not Meet the Needs of Special Needs Children 101

I. Child Support Charts 101

A. Short-Term Needs 101

1. Preexisting Expenses 101

2. Therapy 102

3. Equipment 103

4. Medication 103

5. Supplements 103

6. Dietary Costs 103

7. Sensory Items (Therapy, Different Clothing/Other Items,

Take-Along Items) 104

8. Respite Care 105

9. Professionals 106

10. Modifications to the Home Environment 106

11. Changes in the Child’s Needs 106

12. Costs Caused by the Divorce 107

B. Long-Term Needs 107

II. Visitation Schedules 108

A. Noncustodial Parent 108

1. Child’s Schedule 109

B. Environmental Modifications 111




CHAPTER 5

Legislation, Case Law, and Parenting Plans 113

I. Legislation 113

A. Federal Law 114

1. Health Care Issues 114

2. Educational Issues 115

B. State Law 116

II. Case Law 119

A. Standard Child Support Chart 123

B. Standard Parenting Plan 126




CHAPTER 6

Model Child Support Chart, Parenting Plan, and Modification 151




CHAPTER 7

Maintenance and Property Distribution in Special Needs Cases 165

I. Maintenance 165

II. Property Distribution 167

III. Retirement Accounts 167

IV. Career Advancement 168




CHAPTER 8

Roles of the Parties 169

I. Rights of the Parties 169

A. Special Needs Child 169

B. Custodial Parent (Primary Caregiver Parent) 169

C. Noncustodial Parent (Non–primary Caregiver Parent) 169

D. Lawyers 170

E. Judge 170

F. Guardian ad Litem/Special Needs Coordinator 171

G. Other Professionals 171

II. Responsibilities of the Parties 171

A. Special Needs Child 171

B. Parents 171

C. Lawyers 171

D. Judge 172

E. Other Professionals 172

III. Participation 173




CHAPTER 9

Special Considerations in Special Needs Family Law Cases 175

I. Individualized Education Plans (IEPs) and 504 Plans 175

II. Behavior—School and Criminal Justice System 177

III. Religion 178

IV. Parents with Special Needs 179

V. Planning for a Crisis 180

VI. Using Technology to Facilitate Co-Parenting 182




CHAPTER 10

Estate Planning for Families with Special Needs 183

I. Special Needs Trusts 184

II. Guardianships 185

III. Conservatorships 185

IV. Additional Estate Planning Options for Families with Special Needs 186




CHAPTER 11

Forms and Samples 187




CHAPTER 12

Resources 245

I. Center for Parent Information and Resources 245

II. State Councils on Developmental Disabilities 246

III. State Departments of Education 251

CHAPTER 13

Bibliography 257




CHAPTER 14

Checklists 275

1. Initial Interview—What to Ask the Client 275

2. Client File Contents—Items the Lawyer Should Have in Her Client

File When Handling a Special Needs Divorce Case 278

3. Drafting the Petition—Special Subject Areas for the Petition 279

4. Statement of Income and Expenses—What Should Be Included

in the Statement of Income and Expenses 279

5. Answer and Cross-Petition—How to Prepare the Answer

and Cross-Petition 279

6. Discovery—Subjects to Explore through the Discovery Process 280

7. Temporary Orders—Do You Need to File a PDL Motion

(Interim Order)? 284

8. Child Support—Special Considerations Regarding Child Support 285

9. Custody—Special Considerations Regarding Custody 285

10. Visitation—Special Considerations Regarding Visitation 286

11. Support Systems for the Special Needs Child—Help for the Special

Needs Child during and after Divorce 286

12. Property Distribution—Special Considerations Regarding Property

Distribution, Including Retirement Accounts 287

13. Counseling—Special Issues for Counseling 287

Parents 287

Special Needs Children 288

Siblings of Special Needs Children 288

Glossary 289

Index 297