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Special needs parents should explore unusual custody strategies

If you are the parent of a special needs child and are going through a divorce than today's blog post is for you. It is certainly reasonable for you to have a number of issues on your mind in relation to your divorce and your children at this time. I can think of few other circumstances that can be as stressful as a divorce. Add onto that additional factors related to the coronavirus pandemic and your special needs child and you have a potentially stress filled period of time coming up for you and your family. It is up to you to manage those aspects of your case that you have direct control over and plan on how to handle those areas where you don't have as much control. 

Regarding custody of your special needs children you need to be aware that there are numerous ways for you to set up your case in order to accomplish goals that are in the best interests of your special needs child. It is statistically unlikely that you will go through to a trial for your divorce and it is much more likely that you and your spouse will settle your case in mediation. This likely result puts more pressure on your ability to problem solved in negotiate your way through problems rather than prepared to duke it out with your spouse in a courtroom. While you should always build your case to be ready for a trial it is more likely that your divorce will conclude in mediation rather than a contested trial in front of a judge. 

It is not enough for you to listen to family and friends and their experiences in divorce and then apply the lessons of their custody case to yours. While your friends and family may have useful tidbits of advice, the reality of your case is that your special needs child will likely face concerns regarding conservatorships in custody that most children do not. Therefore, the usefulness of advice from other people may be lessened do to your specific family circumstances. Rather, you should consider the specific needs of your child when negotiating issues related to custody in your divorce. 

Negotiate is the keyword to use here. It is unlikely that you will encounter a judge in your case it is more useful for you to figure out how to create results-oriented solutions for your special needs child. This means taking into account his or her specific limitations and then figuring out multiple ways to arrive at those endpoints. This is the opportunity and challenge presented by divorce in Texas: to be able to come up with solutions to problems that impact you and your spouse. Bearing in mind that you and your spouse may not be on the best of terms right now. 

What does custody mean in the context of a Texas divorce? 

In general, custody means your ability to both be in possession of your children during designated time periods and be able to make decisions regarding their well-being. This is my quick, shorthand definition of the term custody as I think it is used by most people. Please note that custody is not a term that is used even once in the Texas family code. custody is more so a term created by attorneys in the public to refer to many of the issues surrounding parents and children within a divorce or child custody case. It is used so often and so interchangeably with many topics and family law that I will continue to use it in our blog post today.

When it comes to the right to make decisions for your special needs child in the duty to care for your special needs child you and your spouse will likely be sharing many of the duties in terms of supporting, educating and maintaining the health of your child. As far as the right to make decisions regarding their education and medical treatment the same is true. The third area that is relevant would be sharing time with your child throughout the year. Even though we know that you and your spouse will be sharing in these areas of your child's life the issue that we need to get to is how are those rights, duties, and time going to be set up for sharing between the two of you.

Custody considerations regarding education and medical decision-making  

For many parents, decision-making regarding educational and medical matters oftentimes will get lost in the shuffle of a divorce. So much of the time, the emphasis of many parents in the context of a divorce is focused almost primarily on time with the children. While time with your kids is important so is the ability to make decisions on behalf of that child. This is especially true in regard to special needs children. You are special needs child may require almost constant intervention by you and your spouse when it comes to their medical or educational lives. As a result, you cannot overlook the importance of conservatorships issues in a divorce. 

As I just mentioned, most every set of divorcing parents will end up splitting conservatorships rights with one another. Many parents will be forced to share rights and duties with one another while holding some rights and duties independent or exclusively on the other parent family laws in Texas basically forced parents that are divorced to work together to make decisions for their child that are for the best. As a result, you cannot merely expect to be able to get your way at all times when it comes to decision making for your special needs child. Rather, you need to be prepared to Think through these important issues with your spouse and arrive at solutions that are based on what you believe is best for your child in the long run rather than what suits you and your own opinions right now. 

Many special needs children face somewhat critical junctures in time on a frequent basis where decisions need to be made regarding their health. A strategy that I would attempt to implement in a divorce case would be to consider whether or not you are in a position to have the exclusive right to make decisions for your child in regard to their education and health. An obvious benefit to having the exclusive right to make decisions like this would be that you do not have to check with your ex-spouse when making decisions for your child. In most divorce or child custody cases it is not possible to hold this right have exclusive decision-making independent of your spouse. 

However, due to the nature of your child's special needs, it may be that you have had the experience necessary to make better decisions than your spouse. For instance, if you are a stay at home parent in have always been there for your child in regard to educational or medical decision making then you may be better positioned to continue to make those kind of decisions as your child enters into a post of horse life. If you can present your case to a mediator showing that you have always been present for decisions regarding education and medical issues while your spouse his largely deferred to you then you may be able to present a strong argument that you should be able to hold these rights independent of your spouse. 

In most child custody or divorce cases parents typically do not try to push for independent or exclusive decision-making. however, much of the time this is true because parents don't ask or push for it.  taking an unorthodox approach to negotiation in this regard is a great idea For many parents who find themselves in unorthodox situations involving special needs children. 

Visitation imposition of special needs children 

Your special needs child may benefit from less structured periods of possession with both you and your co-parent. As such, you may want to consider more flexible visitation periods they can better take advantage of the time that both parents have with your child. For instance, your child may have issues with being separated from either parent for long stretches of time. He or she may have strong attachments to both you and your spouse thereby making extended periods of absence from either parent very difficult for him or her to manage. With this in mind, even they standard possession order may not work well for you and your family. What else can you try to do to make custody easier to manage for your family? 

Depending on the age and school schedule of your child you may want to work with a two days on two days off schedule of alternating visitation between both parents. Your child will be made to feel like he or she is capable of building a relationship with both of his or her parents while also minimizing the back and forth travel that day on day off Visitation would require. Even a two days on two days off Visitation schedule requires parents to live close together so if you and your ex-spouse do not plan on living in close proximity to each other this plan may not work. 

On the other hand, your child may do better with longer stretches of time with both of his or her parents. If this is the case, then you all should try to implement a schedule where your child has week on and week of possession with both you and your ex-spouse. This sort of schedule works better for children who are older and don't have as much of an attachment to seeing either parent on a frequent basis each week. Not only does it increase stability for your child in either household, but it also minimizes the amount of travel necessary for your family back and forth in between each home. 

Whatever plan you choose to implement for cursory situations regarding Visitation and possession you should ask yourselves what works best for your child now and what is most likely going to work best for your child in the future. It goes without saying the needs of your child may change overtime, but you should do your best to anticipate those changes so that you minimize the need to return to family court in the future. 

Benefits of negotiating directly with your spouse 

family court judges will typically issue orders that are pretty well straight down the middle. This means that a judge is very unlikely to stray too far from a standard possession order and a typical division of rights and duties for conservatorships purposes. This may work well for some families but if you are the parent of a special needs child then I highly recommend that you do your best to negotiate directly with your spouse. 

You will find that you and your spouse are much more likely to come up with original in unique strategies and plans for custody and Visitation for your special needs child then would a judge. The main reason for this is that you and your spouse know your child much better than a family court judge would even after an extended trial on the matter. Even if you and your spouse are not on the best of terms you should work together to hammer out as many agreements as you can in mediation in minimize the need to see a judge to decide any issues regarding your special needs child. 

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone and via video. these consultations are a great way for you to learn more about Texas family law and our law office. Thank you for your consideration and we hope you will return tomorrow as we share more unique content regarding Texas family law. 


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