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Monday, April 30, 2012


Jonathan D. Gordon, Ph.D., J.D.

SPECIAL NEEDS IN DIVORCING CHILDREN
Copyright © Jonathan D. Gordon, Esq. 2012

            Children with special needs are more vulnerable in divorces, and consequently they need added protections.  Sometimes the divorce process itself creates a special need such as emotional and behavioral problems.  This will also be dealt with here.

Some Examples of Special Needs:

            This is not an exhaustive list, but a child with special needs could be one with any or more of the following.  I am using some names that are interchangeable or overlapping with others, for ease of recognition.  They are not necessary discrete, separate conditions, and there may be more than one of the following:

learning disabilities, physical handicaps (e.g. cerebral palsy, etc.), psychological and psychiatric disorders, speech and language delays and disorders, developmental disabilities, autism, Asperger’s, visual impairments, auditory impairments, growth/endocrine disorders, etc., other medical conditions (e.g. cardiac or arthritis), neurological (e.g. seizure disorders), etc., to name a few. 

Leading up to Divorce:

            Chances are that the couple have been dealing with the child’s special need for years prior to the dissolution of the relationship.  This may have been accomplished with or without both of the parents participating, cooperating or supporting.  Sometimes the stress of having a child with special needs causes damage to the relationship.  In some couples, the focus being so much on the child (necessarily) can place a distance between the couple.  Either or both of the parents can also react to the birth of a child with special needs in a way that creates a need in the parent as well.  A parent can react with depression, anxiety, anger issues and substance abuse (to name a few) if not able to adapt to having a child who has a lasting impairment in a particular area of functioning.  In some extreme and rare cases, one of the parents abandons the family because they cannot “handle it” and that person simply escapes from their too painful reality by leaving.  It is very difficult for any parents to maintain their balance, work together and keep a consistently positive attitude under these conditions.  It is difficult, but possible.  Most are able to create a lifestyle that balances all of the needs: that of the child(ren)’s and both parents.  Somehow, in most people, difficult life challenges are met with determination, a positive and optimistic attitude, and things hold together.

            In a family where an individual spouse’s mental health is not particularly strong, where the marriage had problems before the special needs were identified, the appearance of the special child on the scene can be the death blow to the marriage or relationship.  It may be the straw that breaks the camel’s back when things were shaky to begin with.  One of the parents may be better suited to care for the child, to ensure that the child gets whatever services are needed.  Or maybe both parents are equally committed to the child, equally able to provide for the child’s needs, but simply have grown so apart that they cannot remain as husband and wife and do this as a team.  So they may have to coordinate their efforts from their respective and separate residences.  Depending on the severity of the child’s needs, both parents may be able to consistently provide for, or take the child for services that are needed.  There is a big difference between caring for a child with mild learning disabilities, or attention deficit disorder, and taking care of a child with severe cerebral palsy or with an intractable seizure disorder, or medical needs that require surgical interventions.   Each need and each child comes with a unique set of challenges that require assessment, and professional support.  The parents are responsible (legally and morally) to ensure that the child gets what he/she needs to optimize their development.

When the Parents are Not so Responsible:

            Showing up in Family Court as parents in the process of divorce or a child custody dispute puts everyone under the scrutiny of the Court.  Maybe for the first time, the quality of the services being provided to the child is really looked at to see if the child’s needs are being met.  The Judge will want to know.  One spouse will often accuse the other of neglecting the child in some way.  When this happens, the Court will want medical documentation, especially when there are disputes over custody and parenting time (visitation) or if a child protective services (CPS) agency already has a referral (from a school, doctor, etc.).  As is common, all kinds of allegations are thrown around in Family Court, some true, some fictional.  The Judge, as always, will want proof to back up the allegations because it is common for a parent to say horrible things about the other parent when they are looking for an advantage in the litigation.  Sad but true.

            In extreme cases, a parent, school nurse or pediatrician—or the court—may make a referral to the State’s child protective services agency because of concerns over medical neglect.  This is a form of child neglect when a parent fails to provide necessary medical or other health-related care to the child, that therefore puts that child at risk of imminent harm.  Not exercising a reasonable degree of care for the child’s safety and health needs is reportable and actionable in most States by the child protective services (CPS).  If the particular state’s CPS agency gets involved and takes a parent (or both) to Court to obtain jurisdiction over the child, then that Judge (could be a different Judge from the one doing the divorce) could order various medical or other health related assessments and services to be provided for the child.  The neglectful parent will therefore be required by the Court to provide the services that the parent previously neglected to provide (or else).  If the parent continues to fail the child in this respect, the Court will order the removal of the child from that parent’s care and place the child in the care of either the other parent if appropriate, or with relatives, or in a foster home.

            Without going into an exhaustive discussion of all the aspects of what constitutes neglect, for the purposes of this topic, it is sufficient to state that medical neglect can involve the failure to obtain required immunizations, failure to provide medical treatment (e.g. medicines, devices such as an asthma nebulizer, recommended evaluations and consultations, etc.), continued exposure of an asthmatic child to secondhand smoke, failure to follow through with psychological treatment, dental treatment, emergency room treatment, etc.  There are other kinds of neglect such as inadequate clothing, poor nutrition, lack of sleeping quarters, inadequate grooming and hygiene, etc.  But that is not the focus here.

            In families going through a divorce where a child has special needs and the Court is not needed to impose what the parents should have already been doing, then the parents now turn to planning how to continue to provide the care they have been providing, but now the focus is post-divorce.  Assuming that there are no restraining orders that preclude the parents from being in the same room together, it is good when the parents can sit together with educational support personnel or with a doctor or other health professional, to discuss the needs and future of their child, and work together for the child’s benefit.   If there is serious disagreement over which course of action to take, and the parents cannot agree, then the Court may have to weigh in and make the decision for the parents as to what will happen.  But generally, the Court might first have to obtain expert opinion to assist the Court in making its determinations.  Generally, when the parents cannot agree on what is in the child’s best interests (schools, activities, medical treatments, etc.), then the Court will make the decision for them.  That is the bottom line.  Parents give over their autonomy and parental discretion to a stranger wearing judicial robes when they cannot agree on what is best for their own child.  Judges often say this to the parents in these same words, but if they cannot agree, the the Court has to assume the responsibility for them.

Parents Creating Damage, Causing New and Real Special Needs:

            The divorce process, and the actions of the parties, sometimes does its own damage.  This damage can be permanent or otherwise long-lasting.  In children growing up in families where there is domestic violence, substance or alcohol abuse, child abuse, or parental alienation, the damage can be severe and require long term and expensive intervention.  It can also cause the child to require placement out of the home at the behest of the State’s CPS agency and the Court.  Parental alienation, which can be an entire discussion by itself, can cause serious emotional problems as well as the severance of a child’s relationship with one parent.   Additionally, a child growing up in a home where a parent or primary caretaker is an alcoholic or is addicted to illicit substances or abuses prescription medication, is at great risk.  The Courts generally consider drinking and substance abuse to be inconsistent with responsible, adequate parenting.  A child witnessing domestic violence can suffer permanent emotional damage.  Sometimes the child gets physically hurt by an abusive parent when the child tries to stop the parent from fighting with the other parent.  A parent who continues to expose a child to ongoing domestic violence may have their child put into placement until the offending parent is removed and the battered spouse engages in treatment. 

            A child who is led by one parent to believe that loving the other parent is a bad thing, may experience great conflict, anxiety and depression, as well as behavioral acting-out in school or elsewhere.  Some parents in their bitterness against the other parent, cannot see how they are hurting their child (or don’t really care) by sending the message to the child that they are not free to enjoy their relationship with the hated parent.  Gifts given by that other parent are not allowed into the house, phone calls are discouraged, nasty remarks are passed in front of–or to—the child about the other parent, and not one extra minute of time is allowed with the hated parent, even if there is a special occasion to enjoy.  What I previously called “reactive narcissistic behavior” (RNB) causes a parent to have such tunnel vision, that the parent cannot or will not see that this is not good for the child. Rather, the parent with RNB will be guided by their own needs and feel no empathy for their child, especially in the area of their relationship with the other parent.  RNB parents showing up in Court or in a forensic expert’s office exclaim that they are simply protecting their child from the inadequate other parent.  They sincerely believe that keeping the child distant from the other parent is a good thing, when in most situations (but not all), it is the opposite.  The child-victim of this tug of war will often become depressed, anxious, keep their feelings to themselves, or become angry. Behavioral problems are not uncommon.  Sometimes this child will simply go along with the more intimidating, alienating parent and adopt their beliefs.  This is akin to the Stockholm Syndrome where a captive rendered completely helpless and dependant on their captor, identifies with and sympathizes with the captor and their beliefs.  And the other parent is progressively marginalized and dissected out of their child’s life, possibly forever.  How can that be anything other than destructive to the child?

Parents Inventing New, Fictional Special Needs:
            There are times when for a variety of reasons, a parent might make up fictional special “needs” that really are not needs.  The parent might sincerely believe their misperception (or delusion), but that does not make the imagined disorder real.   A parent acting narcissistically may tell anyone who will listen:  doctors, the Court, the school, friends, clergy, etc., that the other (hated or marginalized) parent has no idea what the child’s needs are and that the other parent therefore puts their child at risk by their “denial”  or “cluelessness” of the child’s needs.  This can take the form of taking the child to multiple doctors or exaggerating symptoms to others.  In some cases, the parent does this to “prove” the other parent is not an adequate parent, trying to show how he/she is the better parent who knows the child’s needs and provides them.  Some issues are exaggerated or re-visited needlessly.  This also makes the child more dependent on that parent, more nervous, more focused on health and being fragile.   The hated parent is not encouraged to go to the doctor’s office with the child, is typically kept in the dark about when the appointments are, and what the doctor said.  An alienating narcissistic parent can do untold damage by providing the child’s doctors with distorted, inaccurate histories and information.  The doctor usually has no reason not to believe the parent who comes to the office with the child.  If that doctor never sees the other parent (in part because they never find out about the appointments), and the parent who is present tells this doctor that the other parent is uninvolved and uninterested (in front of the child), this just perpetuates the fiction of this child having only one good parent.  The other parent is not encouraged to participate and is in the dark most of the time.  Sometimes that parent becomes overly passive and gives up, out of a sense of helplessness.  That just feeds into the other parent’s theory that gets conveyed to anyone who will listen. 
In extreme forms, this can become a disorder called Munchausen by Proxy Syndrome (MBPS) which is when a parent makes up fictitious illnesses for a child.  Since the parent with MBPS is often so convincing and seemingly in a panic over the child’s health, it results in doctors ordering unnecessary and invasive tests and sometimes unnecessary treatment for a child.  This is a form of child abuse. 

Financial Planning for Post Divorce Special Services:

            Depending on the nature and severity of the child’s needs, planning should take place before the divorce goes through.  If the parties have money, then this is necessarily part of the divorce, ie., equitable distribution of assets, alimony and child support.  In a family where there is money to be divided up, whether in pensions, real estate, savings or trusts for the children, it may be prudent to also include a Special Needs Trust to provide for the child for years to come.  In a case where one of the parents is not fully cooperative or supportive of the child’s needs, the Court upon application by one of the parties, might impose a special needs trust for a child, and fund the trust out of some of the marital estate.  The Court can also order a special needs trust to be primarily funded from one parent’s share of the marital estate if that parent is an alcoholic, or a gambler who will go through the money and leave nothing for the future.  The Court can also order life insurance policies to be taken out for the benefit of the child, with the other parent as trustee for that child.  Each situation has its own set of facts and challenges.  At times, a Trust attorney and/or an accountant may need to be consulted to properly craft the terms of the trust.  This can all be done as part of the divorce process and you should ask your attorney how this might apply to your situation.

            In cases where the family has no money or has negligible assets, the State might have to step in.  There are situations where it is appropriate to apply for a child to be on disability, whether State funded or Federal under Social Security.  While local school districts are required to fund the child’s special education, the State may be able to provide for funding for special living arrangements when the child cannot be maintained in the home.  This can include funding for and placement in institutions for the developmentally disabled, group homes, independent living or vocational training group homes, etc.  If the parent has not already become conversant in the services and funding available for their child, it should be researched, or the Court will refer or order appropriate services and funding. 

            When a parent disagrees that a particular service is necessary, as was mentioned above, the Court may have to obtain expert opinion and then Order whatever it deems to be in the child’s best interests.  When a parent has little income or money to pay child support, the monthly Social Security checks can be a big help.  Parenthetically, when the non-custodial parent is on disability, the children also receive governmental stipends as part of their support since the disabled parent is not able to work and pay child support.  Your attorney should be able to advise you as to what you and your children may be entitled to.

The Bottom Line:

            Parents often fly under the radar until a divorce begins, or until an outside caregiver (schools, pediatricians, etc.) questions the quality of parenting that is being provided to a child.  Once in Court, when the process is adversarial and accusatory, each parent should realize that they will be under heightened scrutiny by others.  Parents lose a lot of their privacy and autonomy in situations like this, namely when children are involved and there are allegations that their needs are not being properly met.  In special needs cases, the Courts will ensure that children are given appropriate services, if not already in place.  Experts can be called in and the Court will have to discern between what is real and what is fictional (as it always has to do).  Parents  who make malicious allegations about the other parent do their children a disservice.  Children need two parents and when there are special needs, those children need consistency and a united front more than ever when a divorce takes place.  Children with special needs sometimes have multiple caregivers providing necessary interventions (educational, medical, physical therapy, psychotherapy, etc.).  For one parent to campaign against the other parent to these caregivers is destructive.  Convincing the professionals that there is only one involved parent is unnecessary and comes from a narcissistic and selfish point of view.  A parent who truly puts their children first will do what they can to cajole, encourage and convince the other parent to be involved (unless there is a history of domestic violence or substance abuse, etc.).  Children in general need both parents regardless of why their parents are dissolving their relationship.  It is up to the adults to be responsible, mature and to keep their private feelings and hurts to themselves so that they can make the child feel safe, secure and loved. Good luck.

Copyright © Jonathan D. Gordon, Esq. 2012

Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.

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