Custody with Special Needs Children

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Special Needs Custody Lawyers in Virginia

Caring for a special needs child can be difficult, especially when you feel a lack of support from your spouse. Sometimes it can even lead to the dissolution of your marriage. In fact, parents of children with disabilities have a divorce rate as high as 87 percent. Recent estimates by the Centers for Disease Control and Prevention indicate that in the US today, about one in six children have one or more developmental disabilities.

Every divorce is difficult, but when you are dealing with a divorce involving special needs children, it can be truly devastating. Count on the Virginia family law attorneys at Melone Hatley, P.C. to protect the best interests of your child with advocacy, legal services, and an aggressive defense of your child’s rights and your rights as a parent.

What Is Considered Special Needs?

Special needs is a catch-all phrase that refers to a long list of disabilities and diagnoses. Not all of those with special needs are disabled children. Some have high-functioning autism, ADHD, or other developmental or cognitive diagnoses. Virginia has legal definitions for what constitutes special needs among children. 

Under Virginia law, “children with disabilities” refers to those ranging in age from 2 to 21 who have a serious emotional disturbance, an intellectual disability, a physical disability, speech impairment, hearing or sight impairment, or multiple instances of health or disability impairment. The law expressly identifies autism spectrum disorder (ASD) and specific learning disabilities and includes children defined as disabled by the Board of Education as well as those who require special education due to their impairments.

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What Should Parents of Children With Special Needs Consider When Getting a Divorce?

Special needs children may have care requirements that may not be addressed by the child support guidelines of the state. These care issues can relate to custody and visitation, child support, benefits, and the age of majority.

How Will Custody and Visitation Work?

The custodial parent, or the parent with whom the child lives the majority of the time, must take on additional care duties. These include dealing with children who do not wish to visit the noncustodial parent because it is a change of environment, because it interrupts their schedule, or for any other reason. Minimizing disruption to the routines of children with special needs is important, but this can interfere with parental visitation rights.

Child Support

Issues of child support when dealing with disabled children or children with developmental special needs can be complex. Children with special needs are more expensive to raise and provide care for, but the courts do not always factor additional medical and special needs costs into child support awards, and it may become necessary to fight for higher awards that do account for issues such as health care, medical equipment, special education, and additional services.

State and Federal Benefits

State and federal benefits for disabled children can include important funding from Supplemental Security Income (SSI) from the Social Security Administration. What is important to remember, however, is that when attorneys push for high child support agreements in a divorce, it can interfere with the child qualifying for these benefits.

Other state and federal benefits can include Medicaid for low-income families whose children have expanded medical care requirements. Sometimes, setting up a specific type of trust — a special needs trust — may be necessary to secure the child’s needs. A special needs trust is a type of trust designed to meet the requirements of an individual with special needs while preserving their ability to receive Medicare or Medicaid.

Government benefits and government programs have very specific requirements. The right law firm can help you balance your child’s additional needs with their eligibility to collect public benefits for their disabilities or special needs so they can maintain their quality of life.

What Happens When the Child Turns 18?

Children with special needs or disabilities may not be able to care for themselves as young adults. It may be vital to address in the divorce agreement what happens when the child turns 18. Special needs planning is an important part of a divorce, involving issues ranging from special needs trusts, living trusts, life insurance, and estate planning issues to special education costs, medical equipment costs, and beyond.

If you have a child with special needs and are facing a divorce, the right family law attorney like Melone Hatley, P.C. may be able to help you account for these needs. Contact our law firm today for legal services and advice regarding special needs planning by calling 800-479-8124 or using our online contact form.

son with special needs hugging his mom

How Do Virginia Courts Determine Custody for Special Needs Children?

Divorce cases involving special needs children are more complicated. Courts always attempt to consider the best interests of the child when determining custody of the child. This means mediators and judges will consider how any parenting plans will affect the child and will attempt to make decisions to maintain the child’s standard of living and stability both during and after the divorce.

The end goal is to ensure that children in a divorced household will continue to have meaningful relationships with both parents and other family members if at all possible. In the context of child custody, the child’s best interests involve promoting and encouraging their happiness, mental health, security, and emotional development with every decision.

This means that the child’s needs are put ahead of the parents’ needs, and they receive every opportunity for development. The problem is that every child’s best interests and needs are unique.

In terms of family law, the goal is deceptively simple: How can the child’s physical and emotional needs be met while also supporting their sense of security and safety? While the question seems simple, the solution is often complex. The courts will usually seek to allow the child to develop relationships with both parents and with as many of their other relatives as possible, from siblings to grandparents, aunts, uncles, and cousins.

It must also be considered, however, whether any of these relationships will negatively impact the child’s development. In some cases, for example, a child’s disability or special needs might require a rigid routine that can be upset by visitation schedules, at least until the schedule becomes part of the routine. How this is accomplished can become quite contentious in divorce proceedings.

mother using ASL with her daughter

What Factors Go Into Determining Custody for Special Needs Children?

Virginia courts consider the following in evaluations of the child’s best interests:

  • The child’s safety, health, and security
  • The child’s relationship with and how much time they have spent with their current caregivers
  • The potential negative effects if the child is removed from their current residence
  • The child’s attachment to siblings, family members, parents, and other loved ones
  • The parents’ physical, mental, and emotional health
  • The proximity to schools or necessary medical care
  • The family’s culture
  • The child’s age and developmental level
  • The proximity of immediate and extended family
  • A history of abuse, violence, abandonment, substance abuse, or similar issues in the home
  • The financial resources of each parent
  • The child’s wishes (depending on their age and maturity level)

When possible, Virginia courts prefer to keep both parents involved. Only when one parent is determined to present a threat to the child’s well-being or safety are they removed. Every judge will consider these factors to different degrees based on their individual point of view. Many of the above factors are simply guidelines for them to consider, and they will usually attempt to look at the overall picture.

Get Extra Protection for Your Special Needs Child Today

Melone Hatley is a family law firm with offices in Chesapeake, Fairfax, Loudoun, Reston, Richmond, and Virginia Beach, but we represent families from all over the state. We also provide top-rated legal representation for clients in the Charlotte, North Carolina area. Our dedicated attorneys deeply value your family and believe that advocacy for special needs is as important to the services we provide as anything else. We can provide you with resources and guidance from trusted outlets such as the Disability Law Center of Virginia and with all aspects of your divorce case. 

Our practice areas include family law, trusts, and estates, and we are here to help. View our testimonials and referrals and reach out to us for a consultation. Let us protect your loved ones with disabilities and fight for a fair divorce settlement for you. Call 800-479-8124 or fill out our online contact form today.

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