Family law in Minnesota is adopting a new approach on special needs children in a divorce.
My previous post regarding upcoming changes in family law gave a brief overview of the new best interest factors. This post will take a deeper look at just one of those specific changes and analyze the impact it could have on your family.
Parents of children with special needs face unique challenges which can be a serious factor in the divorce process. Prior to the recent changes, the best interest factors did not specifically address children with special needs. Instead, the language was much broader and considered merely “the mental and physical health of all individuals involved.” The new best interest factors require the Court to take into account the special needs of a child and how custody and parenting time arrangements may impact the needs of that child.
Specifically, the new best interest factor (effective August 1, 2015) states that the Court must consider and evaluate, “any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services.” This new factor clearly acknowledges that a child’s special needs may affect parenting arrangements and that a child’s access to recommended services is a relevant consideration for the Court.
Divorcing parents of children with special needs have unique challenges that must be taken into account when determining the custody and parenting time arrangement that is best for the child. Some things to consider are:
Legal custody is defined as, “the right to determine the child’s upbringing, including education, health care, and religious training.” Joint legal custody means that both parents have equal rights and responsibilities, and the right to participate in major decisions determining the child’s upbringing, regarding any of the above. Children with special needs can require extensive medical treatment, psychological services, and education modifications. If there are significant disagreements between parents about the medical care or educational needs of the child, joint legal custody may not be in that child’s best interest.
All divorced parents need to communicate with each other regarding their children. A situation where parents have the ability to positively communicate with one another and exchange information about the children only serves to benefit the children themselves.
Parents of children with special needs may have a greater need to maintain communication between them. Children with special needs may be unable to communicate directly about their needs and parents may be required to communicate more frequently or at greater length in order to ensure that both parents have the most up-to-date information regarding the child’s care.
One parent may have been the child’s primary caretaker during the marriage and may feel more comfortable continuing in that role after the divorce. The new best interest factors no longer include a factor that specifically addresses the “primary caretaker.” Rather, the best interest factors look at the history and nature of each parent’s participation in providing care for the child.
The new best interest factors also consider the ability and willingness of each parent to provide ongoing care for the child. This represents a shift from the old standard which looked only at what had been done in the past. This new factor allows parents who may have been less involved in the care of a child than the other parent to demonstrate that they have both the ability and willingness to provide care for the child after the divorce. Parents of children with special needs must be sure to address all of the parenting obligations that they will face in order to provide appropriate care for the child.
Access to Services
Parenting a child with special needs can often involve multiple service providers including medical providers, therapists, educational providers, etc. These providers can be individuals or organizations that a family, and more importantly a child, has worked with over a significant period of time. Changing providers may not be in the child’s best interests. The location of these providers, as well as the frequency of appointments for services, must be considered by divorcing parents.
As one household transitions to two separate household during or after the divorce, it is of paramount importance that a child with special needs experience as little disruption to their routine and recommended services as possible. A parent’s proximity to service providers must be considered as well as that parent’s ability to attend the various scheduled appointments.
In many cases, a child with special needs requires consistency in their environments. Significant or frequent transitions or inconsistency of care provided in each parent’s home could be disruptive for that child. While parenting time schedules that give each parent equal parenting time or that have a child spending longer periods of time away from each parent, may be possible, or even advisable in some situations, they are not a solution that works for every family. Families with children with special needs should carefully consider their individual child’s (or children’s) needs when coming up with a parenting time schedule.
If you, or someone you know, is the parent of a child with special needs, and has concerns about the divorce process and the impact on that child, contact us today for a free consultation at 651-647-0087, or reach out via our online contact form. We look forward to hearing from you.