I have been a divorce lawyer for more than 30 years. Over that period, I have represented many parents with special needs children. Maryland judges have also appointed me, on well over a hundred occasions, to represent children as a Best Interests Attorney. Many of those children have also had special needs. These cases can be extremely difficult matters to litigate, particularly when the children experience mental health issues, learning disabilities or behavioral difficulties. The symptomology of these often cannot easily be seen, explained or understood.
For better or worse, I come to these cases with not only my experience as a lawyer, but also as a parent of a child with lifetime mental health issues. Like a cardiologist who has experienced a heart ailment or an oncologist who has had cancer, I believe my own personal experience with my child has helped me to understand the needs of these children, the nuances of what works and what doesn’t when it comes to time-sharing arrangements, as well as the myriad of issues that these children are faced with when shuttling between two homes.
A child who is eligible for special education services under the federal Individuals With Disabilities Education Act (IDEA) will have an Individualized Education Program, or IEP, created for him or her. IDEA provides individualized services to students in public schools and emphasizes inclusion of all students with disabilities to the extent possible with their non-disabled peers. The IEP sets forth the needed information about the child in all areas that are educationally relevant. It is developed with input from both school personnel and the family and is based on the child’s present levels of performance. The IEP includes aspects of academic work, functional skills, social skills, behavior, and emotional health. If needed, an IEP may provide for speech, occupational or physical therapy. Similarly, some children have what are called 504 Plans, which are developed to ensure that a child who has a disability identified under the law and who attends an elementary or secondary educational institution receives accommodations that will ensure their academic success and access to the learning environment.
Parents in the midst of divorce who have special needs children should think carefully about their choice of a lawyer, particularly if custodial disputes are anticipated. When interviewing lawyers, the parent should ask about the lawyer’s experience in working with families that have special needs children, inquire into his or her understanding of the nuances that might be necessary in negotiating parenting plans and agreements as well as the impact on child support and the often complex decision making issues faced by parents raising these children. Another area to discuss with potential counsel is his or her experience taking these types of cases to court, and the strategy involved in putting forth the necessary evidence to explain the child’s issues and related needs.
Whenever I have a case that involves a child with special needs, I review school records that document the disability and that describe the IEP or 504 plans that have been designed to meet the child’s unique needs. I look at medical records as well, including psychological and behavioral evaluations, all in the course of helping my client retain an important role in the child’s life after the divorce and in the course of trying to provide for the needs of the child.
It’s important to remember that in most cases, regardless of the custody agreement or court decision, both parents will likely always be a critical part of his or her child’s growth and development. Even in the most hotly contested custody matters, parents should be counseled and made to understand that the other parent will continue to have a place in the child’s life long after the lawyer has moved on to another case. This is particularly true for parents of special needs children, who face very unique and “special” problems and complications of their own.
