A Divorce With a Handicapped Child

by Elizabeth Rayne
A divorce decree should address the child's specific needs.

A divorce decree should address the child's specific needs.

Barbara Penoyar/Photodisc/Getty Images

Parents of children with mental or physical handicaps or disabilities must consider the special needs of their child when getting a divorce. Depending on the laws of the state and the particular needs of the child, parents must consider carefully what is the best custody arrangement, and whether the child will need a guardian, once he reaches the age of majority. When it comes to government benefits, parents should consider how alimony or child support will affect their child's eligibility to continue to receive benefits.

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Custody and Visitation

No matter what the abilities of the child are, courts will make custody and visitation determinations based on what is in the best interest of the child. Children with mental or physical disabilities may have unique needs that must be addressed when determining the best custody arrangement. As such, the focus of custody arrangements may center around providing a consistent routine for the child and which parent can best address the child's health and educational needs. The court may also give more consideration to the burden placed on the child in transitioning between each parent's home -- and as a result -- may find it in the child's best interest to have a longer period of time spent with each parent.

Guardianship

Depending on the mental and physical needs of the disabled child, divorcing parents should also consider who will take care of the child once he becomes an adult. The child may need a guardian after he reaches the age of majority if he is unable to take care of himself. A guardian may care for the adult disabled child on a day-to-day basis and make financial, personal and health care decisions for him. Although one parent may agree to serve as the guardian, a court may appoint someone other than a parent to serve in this position. Because a guardian is not appointed until the child is an adult, custody and visitation agreements made in family court will likely no longer have effect once the child reaches the age of majority. Depending on the laws of the state, probate instead of family court might handle guardianship when the time comes and award a visitation schedule to allow parents to spend time with their adult disabled child, if necessary.

Guardian Ad Litem

Depending on the laws of your state, the court may also appoint a Guardian Ad Litem (GAL) to help during the custody proceedings. The court may appoint a GAL in any case where the judge is concerned about the welfare of the child, perhaps because of your child's disability. The GAL will independently investigate the facts of the case and interview the child and parents. The role of the GAL is to represent the needs of the child throughout the custody proceedings.

Child Support and Alimony

If the disabled child receives government benefits, parents should carefully consider how much the custodial parent receives in child support and alimony. If the custodial parent is awarded alimony, the government may award less supplemental social security income (SSI) for the care of the disabled child. Additionally, child support, which may serve to cover the costs of special needs that the state's support guidelines do not take into account, may reduce SSI up to one third for minor children. When a child is disabled, courts may order child support to continue after the disabled child reaches the age of majority. However, depending on the amount of monthly child support, the adult disabled child may be disqualified from receiving SSI or the payments may be reduced.

Special Needs Trust

Divorcing parents with a disabled child may consider setting up a special needs trust, which allows the child or custodial parent to continue to receive income after one or both of the parents pass away. In addition to ensuring that your child will have the financial support he needs, a special needs trust can be created so that income received from the trust will not affect government benefits, including SSI. Parents interested in pursuing a special needs trust should consult a professional or online legal documents provider.