It is estimated that one in five American families has a child with a disability or special healthcare need. While the parents of these children often struggle to establish healthy routines for their child while married, it may become significantly more challenging during and after divorce.
Amy Laughlin, Founder and Managing Partner of Laughlin Legal Divorce & Family Law Group in Silicon Valley has a deep interest in families with special needs children and extensive experience advocating for them. Below, Ms. Laughlin shares her perspective on a number of the most common questions these parents have.
Q If someone is getting a divorce with a special needs child, how complicated is custody for a child with disabilities in California?
AMY LAUGHLIN It’s not so much complicated as it is complex. In non-special needs cases, barring something about a parent that negatively affects the best interests of the child, California courts like to see frequent and continuous contact with both parents, and that usually results in 50/50 custody.
However when a child has special needs, a different approach is almost always required. Experts in California recommend a risk assessment model to help analyze a number of significant factors in determining what arrangement would provide the best custody arrangement for this child.
Naturally it varies from child to child and diagnosis to diagnosis. The disorders we see most often in special needs cases are ADHD/attention deficit/hyperactivity disorder, autism spectrum disorder, and major depressive disorder. And no two children are exactly alike which is why courts, and experts who inform them, take a very detailed look. Some children will have a great deal of trouble with transitions, from household to household, from mom to dad. So the custody solution may take that into account and build fewer transitions into the child’s schedule.
Parents are all different, too! Sometimes one parent, maybe it’s a stay-at-home parent, has been the primary caregiver, and is just better equipped than the other parent. Sometimes the parents disagree about the child’s treatment plan, and the court finds that one of them is better suited for having custody based on their availability and willingness to provide the treatments that are being recommended.
So determining custody for a child with special needs is very complex. And never to be taken lightly.
Q What legal tools or planning tools are available to provide for a special needs child in a divorce in California?
AMY LAUGHLIN Probably the most valuable legal tool for determining child custody for a child with special needs is a child custody evaluation, often administered by a licensed clinical psychologist. They specialize in child and family clinical and forensic psychology, and they do a comprehensive look at every aspect of the child’s world. They speak with both parents and visit both parents’ homes. They speak with the child’s teachers, doctors and therapists, and spend many many hours gathering information. It can take three to six months, that’s how thorough it is. And then the psychologist weighs it all and makes informed recommendations for the parents. And if they don’t agree, their custody case goes to trial.
A very common planning tool for a child with special needs is a special needs trust to protect and provide for the child during and after divorce. Sometimes these children won’t be able to manage their own finances when they’re adults, so they need someone else to do that for them, and that’s when a special needs trust gets set up.
Q What considerations are weighed in determining special needs child custody in California?
AMY LAUGHLIN This goes back to the risk assessment model. It’s about assessing the capacity of the parents as much as the child. To what degree are both parents available and capable of the kind of focused attention a child with special needs may have?
For instance, are both parents equally likely to follow the medical protocol that the doctor or therapist have set up for the child, and make sure the child’s individualized education programs or IEPs continue without interruption? Will both parents see to it that the child is consistently getting the occupational therapy or speech therapy and developmental routines the child needs? Does the child have whatever special equipment or adaptive technologies are required at both parents’ homes? And if not, is there a portable solution?
Another factor is simple stability and continuity. Children with special needs often crave routine behaviors and schedules. Getting up at the same time, following the same sequence of events from day to day. Upsetting that pattern can be very destabilizing, whereas maintaining it helps them feel safe and secure.
Q Does California Family Code 3910 Child Support specifically address support for a child with disabilities? How is child support for a special needs child in California calculated?
AMY LAUGHLIN It does. It defines what each parent of a child with special needs is required to do “to the extent of their ability” to financially support and look after that child’s best interest even into adulthood or for as long as that child continues to be incapacitated. The court may determine that a special needs trust should be set up to protect the child’s government benefits.
The way child support for a special needs child is calculated In California is pursuant to a formula laid out in the California Family Code Section 4055 which sets out an algebraic formula to calculate child support where you plug in all the inputs and it provides an amount that’s to be paid for a standard monthly base child support.
Now if the child has special needs, California Family Code Section 4062(b)(1) addresses the additional special considerations that are taken into account like medical expenses, therapeutic expenses, medications and special dietary requirements, special education, tutoring, special equipment, and how the parents split those expenses.
Q What advice can you offer to protect a special needs child in a divorce in California?
AMY LAUGHLIN These are often the parents who are wondering if they should get a divorce or will it be way too disruptive for their child. It’s a fair concern. And I always recommend that they do what they must do to be healthy parents first, and then keep in mind that what their child wants most is a peaceful, predictable home life. Seek the advice of the child’s therapist or treatment team to find the best way to talk to the child about the change.
And don’t pull that child into your drama. Don’t trash talk, and don’t overshare. The things I’ve heard children report about their divorcing parents can be heartbreaking. But don’t undershare either, by which I mean apply a filter to what you share that is age-appropriate. You can always check with a therapist to find that sweet spot.
Q How does child support after 18 for a disabled child in California differ from support for a minor child with disabilities?
AMY LAUGHLIN It doesn’t really differ, it just continues. It doesn’t end if the disabilities continue. It’s your ongoing duty to support your child with special needs, perhaps for life.
Q Is there any form of public support for an adult child with disabilities in California?
AMY LAUGHLIN Yes. California has robust support systems for an adult child with disabilities in California covering financial aid, medical care, developmental services, etc. To name a few, there’s the DAC/Disabled Adult Child Medi-Cal program providing monthly benefits for adult children disabled before the age of 22, SSI/Supplemental Security Income for disabled adults with inadequate resources, and IHSS or In Home Supportive Services that provides caregiving services.
And there are professionals called service coordinators or child’s rights advocates out there who help parents assess their child’s needs, develop a plan to address them, and navigate these state programs to get those needs met. That’s all they do all day. You can reach out to them at one of California’s 21 regional centers across the state run by the Department of Developmental Services.
Q Is it important to hire an attorney who has direct experience with adult child support in California with disability? What kind of attorney can find best-case solutions for adult disabled child support in California?
AMY LAUGHLIN Well, I believe it’s essential to work with a family law attorney who has experience working with families who have a child with special needs, and better still if they have personal experience or independently sought to educate themselves. I’d look for someone who has a background in special needs and who has educated themselves on healthy strategies for looking after these families independent of going to law school because you’re not going to learn anything about it there.
If you follow those guidelines you’re more likely to find somebody who feels passionately about advocating for these children and their parents. That’s the heart part of the search. You’ll know it when you feel it. Trust yourself.
Q Can you recommend a divorce attorney for a special needs child in California?
AMY LAUGHLIN Our firm, Laughlin Legal, has expertise in this area, a great deal of it, and we can not only strategize a best-case custody solution, we can also establish a special needs trust for your child. We can do it all.
Laughlin Legal Divorce & Family Law Group is a collection of some of the most skilled divorce and family law attorneys and mediators in Silicon Valley. Laughlin Legal is trusted throughout California for their ability to skillfully help divorcing parties with a child with special needs achieve a better outcome.
If you or someone you love is headed for a divorce or requires help with another family law issue, let’s talk. Call us now at 650.343.3486 to schedule a consultation with a Laughlin Legal high net worth divorce attorney. If you’d prefer, you can email us to set up your appointment. If we miss your call, we will respond promptly and call you back as soon as possible.
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