There are many complexities associated with divorce that relate to children. There is often a struggle in time shared with the children and adjusting to a new lifestyle of going between homes. Many issues will arise when it comes to divorce and children. These issues are amplified when the child involved has a disability.

What impact could a child’s disability have in your custody case? Who will manage the child’s disability income? Which parent determines the school the child will attend? Does the disability of the child affect any support obligations? Whose health insurance will be used for the disabled child? Who will foot the bill for any uninsured medical expenses? A divorce that involves a disabled child can bring with it issues that could complicate an already difficult situation.

Child Custody Considerations

In North Carolina, a judge will make a determination in the best interests of the child when it comes to child custody. But what does the “best interests of the child” mean? There is no exact way to define the phrase. The judge will consider a number of factors when determining the best interests of the child. Those factors include, but are not limited to:

  1. Which parent will serve as the primary caretaker of the child;
  2. The travel required by a parent’s work schedule;
  3. Any history of drug or alcohol dependency;
  4. The mental stability of the parent. If a child has a disability, that will be an additional factor the judge will consider for custody purposes.

The parents of a disabled child will be aware of the particular concerns related to their situation. These concerns may be related to the child’s physical environment, such as a child who is wheelchair-bound having a home that will accommodate a wheelchair. Or, for a child who is blind and requires the use of a service dog, a parent will need to make sure any place the child stays is pet-friendly.

Another major concern for a child who is disabled is their emotional needs. Is the other parent able to help the child cope with such a dramatic change? Does the child’s disability make it harder for the child to deal with the divorce? Will the other parent cooperate in counseling or treatment necessary for the child? There are also situations when a parent fails to accept that the child has a disability. For example, one parent will receive a diagnosis from one physician, while the other parent refutes the doctor’s diagnosis. Some will accept the diagnosis, but remain in denial. Others just disagree on the best treatment for the child.

Parenting a child with a disability while going through a divorce presents unique child custody considerations. As a parent, if you are interested in reaching an agreement on custody outside of court, it is important to fully discuss such concerns with the other parent. Topics might include: the best way to transition the child between homes; education needs of the child and how to make decisions related to those needs; child care options; treatment (including medical care and special therapies); and social and recreational activities that may benefit the child.

When negotiating a custody arrangement outside of court, as parents you should always be as open as possible about your concerns. This especially holds true for parents of a disabled child who are likely dealing with a more complicated situation than other divorcing parents. To avoid any confusion moving forward, each of these issues should be addressed in your agreement, in detail. In the event that you are unable to come to an agreement and wind up in court, be sure the judge is knowledgeable of the facts unique to your case and your disabled child, and that he or she is mindful of your concerns related to the child’s disability.

The Custody Schedule

When it comes to custody, there are two popular schedules used by parents and judges. Those two types are the (1) week-on/week-off schedule; and (2) every-other-weekend schedule. The week-on/week-off schedule allows parents to have alternate weeks with the child. The every-other-weekend schedule results in one parent having primary physical custody of the child, and the other parent having the child every other weekend, and possibly on occasional weeknights.

There is evidence provided by mental health professionals and psychologists that shows being  exposed to both parents on a frequent basis is in the best interest of the child. While the constant shuffling of children between homes can be hard for them, the evidence suggests that the benefit they receive from having substantial time with both parents outweighs the challenges that come from frequent transitions.

The traditional custody arrangement system may not make sense, or be understood, by disabled children.  Some children with disabilities need minimal transitions between homes and require longer time spent with each parent, since such a disruption to their daily routine can result in negative consequences. Children diagnosed with autism may fall into this category. A modified schedule, such as a “two-weeks-on/two-weeks-off,” or every-other-month, may be a more appropriate schedule for your child.

In addition to finding the best custody schedule, parents of a disabled child also must acknowledge the importance of communication.  Communication is important when it comes to minimizing disruptions in the child’s routine. Parents should be open with each other about the child’s daily routine, so the other parent can replicate the routine. The best way for a parent to help a child transition between households is to ensure that the routines in each home complement each other and avoid any negative impact on the child.

Child Support

The North Carolina Child Support Guidelines do not specifically provide for a child with disabilities. Meaning, support for a disabled child will usually not differ from support obligations for other children. The child’s disability may be of no consequence to the actual amount owed, according to the support guidelines. Nevertheless, the guidelines do address disabilities in one respect. On the support worksheets in North Carolina, there’s a section titled, “extraordinary expenses.” Per the guidelines, the extraordinary expenses field is used for expenses related to special or private schools needed to meet the educational needs of a child, and expenses related to transporting the child between the parents’ homes.

Even though the child support guidelines do not specifically factor in the disability of a child, the court always has discretion to deviate from the guidelines. The court can order more or less than the guideline amount based on the actual needs of the child. However, the party desiring an increase must produce evidence supporting such a deviation. Evidence of increased childcare costs, medical expenses, and transportation expenses are examples of additional expenses a disabled child’s parent might incur, and could be grounds for a deviation from the guidelines.

Additionally, your child’s disability does not have a direct impact on the duration of a child support award. North Carolina law states that child support ends when a child either is emancipated or graduates from high school. Specifically, North Carolina General Statutes 50-13.4 state, “if the child is still in primary or secondary school when the child reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age 18 or prior to high school graduation.”

It is important to note that the statutes make no reference to the duration of child support for children with disabilities. Although children with disabilities often lack the capacity to be self-sufficient by age 18 or even employed, the law does not provide guidance obligating a parent to continue support longer for a disabled child. The only way in which a parent’s obligation continues, is if he agrees to do so outside of a court order, or if he stays enrolled school making efforts to graduate, but not past age 20.

SSDI Benefits

Some disabled children qualify for Social Security support, and parents might wonder how a disabled child can qualify and how that might impact child support obligations. First, it is important to note that there are no regular Social Security disability benefits available for disabled children. However, there are very few circumstances that allow disabled children to receive Social Security income.

For example, a disabled child who is part of a low-income family and has little resources is able to receive Social Security disability benefits. These children receive SSI (Supplemental Security Income) so long as disability requirements set by the Social Security Administration are met. In such situations, the parents’ income is low enough for the guidelines to require minimum support order of $50 per month. As it relates to income, SSI benefits are not considered as income pursuant to child support guidelines; therefore, SSI benefits will not impact a child support order.

Another situation where a child may receive Social Security benefits (disabled or not) occurs when a parent of a child receives Social Security retirement or disability benefits (SSDI). This rule is applicable when the parent is deceased and was entitled to receive benefits or was actually receiving SSDI benefits before he or she died. This benefit is considered an “auxiliary” benefit.

The North Carolina guidelines specify that SSDI benefits received for the child’s benefit as a result of the disability or retirement of a parent, are treated as a parent’s income. The guidelines also allow for a deduction from the parent’s child support obligation. Additionally, the guidelines state that if Social Security benefits received by the child exceed the parent’s child support obligation, no order for prospective child support should be entered. However, the court can deviate from the guidelines and order prospective child support if evidence supports such a deviation.