Divorce can be quite unexpected, traumatic, and filled with uncertainty. The trouble compounds when the couple has joint children. In that case, divorce involves not only a financial and emotional uncoupling, but also requires decisions to be made around custody labels, parenting schedules, and child support. Even when the dust has settled and the divorce is finalized, there is generally a lot of work that each parent must do to build the skills needed to be a successful co-parent. Co-parenting with your “ex” is very different than parenting within a marriage.
Let’s add one more factor to the mix—what if you and your spouse are navigating divorce with a special-needs child? As you can imagine, the situation becomes even more complex and potentially much more difficult. Not only are you saddled with the many decisions that you must make as part of your divorce (Where you each will live? What will your parenting schedule be? Who will get the children on what holiday? How will the traditions of each parent’s family be honored moving forward? etc.) but now, you must also determine how to best simultaneously meet the numerous extra needs of your special-needs child. This prospect may be overwhelming, at best, and perhaps even crippling, at worst.
This article will introduce you to issues divorcing couples with special-needs children may encounter and some ideas for practical problem solving. While the legal concepts are based on Minnesota law specifically, many of the ideas shared below could likely be generalized to fit other jurisdictions as well.
Joint Custody or Sole Custody?
One of the determinations that must be made when a couple with children divorces is the custody arrangement moving forward. There must be determinations made regarding both legal custody and physical custody. “Legal custody” generally means the right to make decisions about how to raise the child, including important decisions regarding education, health care, and religious training. “Physical custody” generally means the right to make decisions about the routine daily-living activities of the child, including where the child lives. Depending on several factors that are set forth in Minnesota’s statutes (the “best interests” factors, Minnesota Statute § 518.17), the parents may either share “joint” custody or one parent may have “sole” custody. These labels apply to both physical and legal custody. Parents with “joint” legal or physical custody share custodial responsibilities and decision making, whereas a parent having “sole” legal or physical custody will be fully in charge of those responsibilities and decisions.
Many divorcing couples can successfully make important decisions concerning their child(ren) even after their marital relationship has ended. Sometimes, however, the co-parents have little to no ability to communicate with one another successfully and are unable to agree on anything concerning their child(ren). There is likely more of a risk that the couple will be in the second category where their child(ren) has special needs. This is because parenting a special-needs child often requires making many more important medical, educational, and other decisions more frequently, when compared to parenting a typically-developing child. And, oftentimes, the decisions the parents must make regularly are not clear cut. Below is an illustration showing how the uniquely complex realities faced by special-needs families might make the divorcing couple’s decision on whether to share legal custody more difficult.
Think of a couple with an autistic child. After a diagnosis, there may be many recommendations made for the child. For example, speech therapy, occupational therapy, Applied Behavior Analysis (ABA) therapy, medication, a developmental pediatrician, special education services in school, psychiatric therapies, etc. may be recommended as options. But there is often not one correct way to navigate all the services. Providers will leave it up to the parents to decide when to start a therapy, what therapist is best for the child, how many therapies and services to thrust upon the child at once, among other decisions. This is where a divorced couple could find it incredibly difficult to share legal custody over their special-needs child. If a therapy or a medication is not working well, how quickly can the parents communicate and decide jointly on how to proceed? If the child is attending public school and receiving services, can the parents agree upon how to adjust the child’s Individualized Education Plan (IEP) each year? Or do they get hung up on disagreements, leaving the child in a holding pattern and pushing the decisions to a Judge?
If the couple decides that it will be better for one parent to have sole legal custody of the child, so that important disability-related decisions can be made more smoothly and quickly, then which parent should have sole custody? The noncustodial parent will need to trust the custodial parent to perform his/her job as legal custodian well.
Think about the same family and the parents’ decision regarding physical custody. Perhaps the parents might otherwise be able to jointly share physical custody (the day-to-day care and control) of the child(ren) on a roughly 50/50 parenting-time schedule. Each parent may feel equally involved and valued when it comes to the daily care of the child under that scenario. But if the child’s many services and therapists are located much closer to dad’s house than to mom’s house, then it may make sense for dad to have sole physical custody of the child, at least while the child is receiving a myriad of regular services. Or maybe mom’s house is better geared toward the child’s needs at this time (e.g., has adaptive play equipment, has a fenced-in yard ). In that case, it may make more sense for mom to have sole physical custody. The point is: as a practical matter, it may be near impossible for this hypothetical family to meet the special-needs child’s needs if mom and/or dad insist on joint physical custody.
Parenting Time Schedules
On top of legal and physical custody, another decision that a divorcing couple with children must make is what parenting-time schedule best meets their child(ren)’s needs. There are many common schedules: “2-2-3,” “2-2-5-5,” alternating weeks, etc. Please see more about parenting-time schedules here. But if a divorcing couple’s special-needs child is receiving frequent services and only one parent has a flexible enough job to manage all those weekday appointments, then it may make more sense for that parent to have the majority of parenting time (at least during the week). An equal parenting-time schedule may simply not be workable to the extent it may be for other families.
Another thing to consider regarding parenting-time schedules for special-needs families is that they may need to change more frequently than they otherwise would. If a child’s doctor’s or weekly therapist’s schedule or location changes, logistics might require parents to temporarily “swap” parenting time, for example. Special-needs children, of course, interact with a far greater number of professionals in the medical system and educational system in general. Any time one of those professionals makes a change that impacts the services provided to a child of divorced parents, the parents may need to re-work their schedule to accommodate the change.
Importance of Visual Schedules and Communication with Exchanges
A final word about parenting-time schedules with special-needs children: if the special-needs child has difficulty managing transitions or processing verbal input (e.g., children with autism, those with certain learning disabilities, or highly sensitive kids), they may also have a hard time with travelling back and forth from parent to parent. They may also have difficulty understanding their daily schedule. In these cases, divorced parents may want to create a visual calendar for the child so they can anticipate when they will be spending time at one parent’s house and when they will be at the other parent’s house. The parents might want to communicate their schedule clearly and often with teachers, so that the child knows what parent will be picking them up from school on what day.
Co-parents that can cooperate reasonably well may find that a parenting plan will be helpful to them as method of outlining custody and parenting time. In Minnesota, a parenting plan is an option that parents have, by statute, to create their own binding legal document regarding how they will parent their children. Certain requirements must be included in the plan in order for it to be approved by the Court. Assuming those requirements have been met, the parenting plan will ideally allow the parents to have more control and will help them better meet the very specific needs of their child (which, of course, they will know better than a judge).
For parents who can cooperate to some degree, a parenting plan may be a good way to divide the numerous extra responsibilities involved with parenting a special-needs child. For example, one parent might be designated in the plan as the parent who will be responsible for communicating the child’s speech therapist and managing speech appointments. The other parent may be designated as responsible for handling all physical therapy appointments. Ideally, where there are two co-parents, both are taking on responsibilities related to the child. Regardless of what the division of labor is, a parenting plan is a good way to spell it out and set the expectations in advance. It can make co-parenting a smoother operation as the couple navigates their new lives and also meets the needs of their child.
If the parents agree on a process or set of criteria for handling certain parenting issues that may come up, those can be included in the parenting plan as well. These matters could include a process of how to resolve disputes over what school a child should go to, or whether their child should start a new optional medication (like Ritalin, e.g.). The parenting plan could include a list of considerations that the parents will make when making such decisions together (e.g., availability of non-pharmaceutical interventions). Related to safety, the parenting plan could include a list of requirements for each parent—for example, each parent must ensure that the child wears a life jacket whenever near the water, that the special-needs child wears a GPS tracker, that all third-party childcare providers are mutually approved by the other parent in advance, etc.
While co-parenting a special-needs child can be particularly challenging, there are a number of creative ways for these families to meet the best interests of their children. The ideas discussed above are just a few. These families should remember that there are professionals with resources available to help with such matters and much more.
If you are seeking assistance with custody, parenting time, parenting plans, or any other family-law matters regarding a special-needs child, contact the family law attorneys at Heimerl & Lammers today at 612-294-2200.
 Here, special needs child is broadly defined as a child requiring special attention and having specific needs that other kids their age does not.
 Many special-needs children present a high elopement risk (i.e., risk of wandering away).