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Special needs children: How being creative in drafting orders can benefit your child

When it comes to a special needs child you and your child's other parent will need more detailed orders regarding the education, health, and well-being of him or her than compared to children without special needs. While family law orders can and should be specific in nature (so as to reduce the likelihood of misunderstandings or problems interpreting the orders in the future), orders regarding a special needs child should be even more specific.

For instance, if developments occur in the diagnosis of a condition affecting your child or in the medication regimen that your child is on, you need to communicate that development to the other parent. Your court orders should reflect this reality. Using email, text message, snail mail, Our Family Wizard or any other means of communication is what I am referencing here. It should be written down and not told orally so that if you or the other parent have questions in the future you can go back and reference it in the future if need be.

You need to communicate the needs of your child to your attorney during mediation for final orders. This is especially true if you are the primary conservator of your child and in charge of his or her daily needs. This is not to say that your opposing party has no responsibility in all of this, but the fact remains that you are more likely to be the parent who works closely with doctors and other treating providers on issues related to your child. By communicating those issues you can help your attorney and the mediator know how the language needs to read in your orders so that you and the other parent can most effectively parent your special needs child.

Specific rights for each parent during individual periods of possession

The typical rights that a parent would have in relation to their child may also need to be altered somewhat in relation to your special needs child and your family. The duty that both you and your child’s other parent have to provide care for him or her (food, medical care, etc.) may need to be expanded from the typical language included in most family court orders. The reason for this is that some kids with special needs have diets or medication regimens that require additional care.

If you find yourself in a position where the other parent and you do not see eye to eye about a particular diet or treatment regimen, then your order will need to reflect how that situation will be remedied. Either one of you is going to have the exclusive decision making capability regarding these issues or there will need to be a tie-breaker element to the orders as we discussed yesterday.

Special diets for children with disabilities as well as consistent physical therapy treatment are only effective if done at both parent’s homes. You and your child’s other parent must have a duty to follow through with these measures if they are found to be in the best interests of your child. This is true even if you or the other parent disagree with how effective these steps are or if they benefit your child.

How are legal decisions on behalf of a special needs child dealt with?

Most of the time in a Texas family law case, both you and the other parent will have the independent right to make legal decisions for your child. For most families, these sort of situations never arise, or at least never arise to a level of any importance. However, if you have a special needs child then they almost certainly will arise at some point. If your child has suffered a hugely impactful injury of some sort then he or she may very well have a legal claim against the party who caused the injury to be sustained.

You should foresee these type of situations arising and make note of them in your final orders. Which parent will be the one to file suit on behalf of your child? How will an attorney be paid for? To what extent does the other parent owe the filing parent for legal fees and other costs associated with litigation or negotiating a settlement in a pre-litigation phase with the insurance company? The same thing goes for pursuing benefits through the government (Medicaid, Social Security) on behalf of your child.

How should educational decisions be handled for your special needs child?

The right for parents like yourself to make educational decisions for your child is especially important when your child has special needs. You have likely been working with your child's school district to make sure that there are programs in place that can meet your child where he or she is in terms of their development. If your home is not zoned to a district that has programs in place that are set up to help a child with special needs you have likely looked into alternative arrangements for your child to be educated.

From my experience with education and special needs children, most school districts are either not equipped to handle the needs of certain kinds of special needs children or would, on the whole, prefer to not have to expend the type of resources that are needed to do so. Budgets are tight, skilled employees are hard to find and parents are hard to please (understandably so). The costs to a school district are high for special needs children so you will need to stay on top of things to make sure your child receives the care that he or she needs.

The court order that you and the other parent have drafted much specify which of you will be the one who makes decisions in regard to educational issues, as well as how much involvement the other parent has in how a particular decision will be arrived at. If the order is not clear on how decisions can be made on behalf of your child in educational matters, those decisions cannot be followed through with and your child will not receive the aid that he or she needs. If you can, negotiating for the exclusive right to make decisions (after consulting with the other parent) is the way to go in this regard.

What about cell phones, social media and other aspects of technology?

If you have a teenager then you know that text messages, social media, and the internet, in general, can be a wild and wooly place for your child to spend any time. Unfortunately, it seems like it is going to be a fixture in the lives of our children for some time to come. It is very important that you as the parent of a special needs child keep up with what your child is doing online and on their cell phones. Usernames and passwords for many websites would need to be under the name of an adult- most likely you. If there are problems associated with downloading music, movies or other media then you should have to provide this information to the other parent if an emergency occurs. The alternative would be to not let your child use your accounts or allow them to sign up for an account in their own name.

You should know how you can view the material that your child is accessing on the cell phone that you are paying for. Text messages, phone numbers and other trails of activity associated with your child’s use of the phone can be ascertained from the cell phone carrier. These phones save user activity very well much longer than we may think. There are privacy settings in the phone that you need to look at in order to make sure that what your child is doing is not exposing your child or you to the world at large.

Do you know anything about your child's social media habits? You should be aware of your child's passwords and usernames. Ask him or her to provide them to you and if he or she refuses then you shouldn't allow him or her to use social media or technology. Tell them that this is not for you to snoop around on their habits, but rather to make sure that they are safe. Cyber-bullying, adults preying on children and financial wrongdoing occurs on the internet with regularity. Your special needs child is someone that a person with bad intent could potentially take advantage of.

Closing thoughts on finding creative solutions to child custody issues in Texas

No two families are alike. That’s the tricky part for me in writing this blog. I can talk all day and all night about coming up with creative solutions to whatever problems that you are facing, but unless I know what those problems are I can’t write about you and your family with any degree of specificity. You may have just finished reading this blog post having learned nothing that is relevant to you and your family. I hope this is not the case, but it is possible.

What I would tell you in closing today’s blog post is that you need to be able to think outside of the box when it comes to arriving at solutions to the difficult issues facing your family in a divorce or child custody case. Going by what your attorney has always done or what the family code lays out may not be a great move for your family. As a result, you need to communicate with your attorney what you think needs to be done for your children. Nobody knows your kids better than you and your opposing party. Do not leave it up to the judge to make decisions for your family, if you can help it.

It is especially important if your child has a special need that you meet with an attorney to go over your case and your circumstances. Do not assume that just because you are the most involved and knowledgeable parent around when it comes to your child’s condition that you will automatically know how to negotiate in a legal setting on behalf of your child. If your opposing party does not see eye to eye with you in regard to what’s best for your child you will either need to figure out how to negotiate with him or her or submit these issues to the judge.

How can you ensure that your individual needs are met with regard to these important topics? By seeking out the counsel and advice of experienced attorneys who practice in family law. This does not mean seeking out the advice of any attorney who says they will take your case. Rather, you should look for attorneys who practice in family law and have dealt with issues similar to yours. Find out how many cases they have handled, how they were negotiated, and what the outcome of each was. Don't rely solely on recommendations from friends and neighbors. Get the answers yourself directly from an attorney and then make a decision only when you have done so.

Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan are appreciative of your spending some time with us today. We enjoy sharing information and perspective on important topics like this one. Hopefully, you learned something and can think more clearly about the issues that are impacting your family right now.

If you have any questions about the material that we wrote about today please do not hesitate to contact our office today. We offer free of charge consultations six days a week here in our office. Our licensed family law attorneys will meet with you and directly address your questions with responses tailored to your specific circumstances. We pride ourselves on being able to provide our neighbors will legal services that are designed to help them achieve their goals. Our attorneys are inside the family courts of southeast Texas every day. Talk to us if you are interested in having our office represent you and your family.

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