February 2016 Bar Bulletin
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Special Needs Children and Parenting Plans

By Lisa DuFour and Sharon Friedrich

 

Dissolutions involving children are complicated in and of themselves. However, dissolutions involving children with special needs do need extra attention and mindfulness from the attorneys involved since special needs children often require additional assistance and/or medical care. It is unfair to all of the children in the family, and the parents, to fail to provide the proper considerations in parenting plans that concern children with special needs.

RCW § 26.09.002 mandates that a parenting plan meet the best interests of the children. Keeping this standard in mind in developing parenting plans that include children with special needs means tailoring the plan to that child’s specific needs, while also keeping the needs of other children as a priority. This can require unique problem solving and solutions.

One of the first resources that parents and their family law attorneys should look to for assistance in creating a parenting plan for a child with special needs are the health care and mental health care professionals who are treating the child. These individuals have specialized knowledge relating to the child in their care and can offer invaluable insights about how to structure a parenting plan to meet the child’s particular needs. The focus here should be on how to best meet the requirements of the special needs child and the other children in the family rather than on a tug-of-war between the parents as to who has the most “minutes” with the children.

It is best to obtain the child’s medical treatment records so that both parents have this information. In many cases, one parent may have been more involved in the care of the special needs child and the other parent may discount the severity of the child’s challenges. Equal access to this information can reduce fear and conflict.

A guardian ad litem or parenting evaluator may need to be appointed to sift through all of the information and make recommendations on how best to tailor a residential schedule to keep the best interests of all children paramount and also address the particulars of the special needs child. In choosing a professional to give recommendations to the court regarding the family, consideration should be given to the background and experience of the guardian ad litem or parenting coach to ensure they have the requisite knowledge to make recommendations about the child’s special needs.

Another resource for the parents is a parenting coach. A parenting coach can work with the parents to help them better communicate during the divorce, and often post-dissolution, to meet the needs of all of the children.

A parenting coach can help the parents learn to be more flexible in regard to their schedules and their children despite the trauma of the divorce. Issues such as “caregiver burnout” and individual time for each parent with the children without special needs should be considered and addressed.

Going through a divorce is difficult enough and having a child or children with special needs can create additional stress and emotions during the divorce process. To help reduce the conflict that is often inherent when parties divorce, family law attorneys can assist their clients by offering solutions outside of the courtroom, such as working with a parenting coach.

Divorcing parents with special needs children are often fragile due to the stress of this dual situation. Plus, there is fear involved on the part of both parents as they separate and strive to create a residential schedule for their children. It is important that these fears be recognized by the family law attorneys involved and addressed in a constructive manner.

There is no specific way to do this as each person involved in a divorce has individual needs and/or fears that need to be resolved. Some ideas include:

• Advising the client to seek out a qualified therapist.

• Helping the client to work closely with the child’s health care and mental health care professionals to develop a parenting structure that best suits the child.

• Work with the client to be flexible and help the client to understand that due to the circumstances of a special needs child it may be necessary that the parenting schedule provide for such flexibility, which may include adjustments over time that meet the child’s needs, especially if the child’s requirements change over time.

• Structure the alternative dispute resolution section of the parenting plan so that there is a professional with knowledge about the family who assists in making decisions before any court action is taken. This professional could be the parenting evaluator or the parenting coach.

It may be best to give the professional the authority to make decisions about issues regarding the residential schedule by arbitration. The issue could still be brought before the court, but having an arbitration clause would limit the back and forth between the parents in a mediation that would increase their stress rather than reduce it.


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