Divorce and Children with Disabilities in North Carolina

Divorce brings with it all kinds of complexities related to children; parents struggle with sharing time and kids have to adjust to a new lifestyle of being shuffled back and forth. Inevitably a million issues will pop up when it comes to divorce and children. These issues are only compounded when the child involved suffers from a disability.

Does the disability make an impact on your custody case? Which parent manages the child’s disability income? Who decides what school the child goes to? Does the disability effect any child support obligation? Who provides health insurance for the disabled child, and who pays for any uninsured medical expenses?

Undeniably, divorcing with a disabled child will bring considerations and issues that complicate an already difficult situation. Here we will discuss these considerations and provide some guidance for those who find themselves in this situation.

Child Custody Considerations

When making a child custody determination in North Carolina, the judge will make a determination in the best interest of the child. But what do those words “best interest of the child” mean? Unfortunately, there is no real answer to that question; there is no easy way to define that phrase.

North Carolina judges will look at a myriad of factors before making a determination as to what is truly in the best interest of the child. They will consider which parent was the primary caretaker, the travel requirements of a parent’s work schedule, any history of drug or alcohol dependency, and the mental stability of a parent just to name a few. If a child has a disability, then that will certainly be an additional factor a judge will consider before making a determination on custody.

As the parent of a disabled child, you know that you have particular concerns related to your unique situation. Sometimes these concerns are related to the physical environment; perhaps your child is wheelchair bound, and as such any residence that the child resides in will need to be able to accommodate a wheelchair. Or maybe your child is blind and uses a service dog, in which case wherever your child stays will need to be pet-friendly.

You will also have concerns for your disabled child’s emotional needs. Is the other parent capable of helping the child adjust to such a dramatic change? Does the child’s disability make it particularly difficult for the child to cope with the divorce? And will the other parent cooperate in seeking necessary counseling or treatment for the child?

There are even situations that arise where the parents disagree on whether the child suffers from a disability at all. One parent may obtain an ADHD diagnosis from a physician while the other parent argues that the diagnosing doctor is wrong. Some parents may agree with a diagnosis of a disability, but simply be in denial. Others simply disagree on what the best treatment for the child is.

As you can see, parenting a disabled child through divorce presents a unique set of child custody considerations. If you are working towards reaching an out-of-court agreement on custody, be sure to explore your concerns with the other parent. Have open discussions about how best to transition the child between homes. Be vocal about educational concerns and how you plan to make educational decisions. Discuss childcare options in advance. Make sure the other parent knows and understands your position on treatment, including medical care and special therapies. And lastly, discuss social and recreational opportunities that may benefit the child.

When it comes to negotiating a custody arrangement outside of court, it’s always best to be transparent about your concerns. This is especially true for parents of disabled children who are facing a more delicate situation than other divorcing parents. Each of these issues can and should be addressed in your agreement to avoid any future confusion.

If you find yourself unable to reach an agreement and you end up litigating child custody, make sure that the judge is equipped with all of the facts unique to your case and your disabled child, and that he or she is aware of your specific concerns related to the disability.

Not only should you be prepared to testify about these concerns, but you should think of others who can testify as well. If your child sees a counselor or other mental health professional, consider having that person testify about the child’s disability and how it has been impacted by divorce. The child’s teacher may be able to testify and provide more details about the child’s unique physical and educational needs.

The Custodial Schedule

There are two popular custodial schedules that are frequently used by parents and judges. One is a ‘week-on/week-off’ schedule that allows for parents to alternate weeks with the child. Another popular schedule is the ‘every-other-weekend’ schedule which results in one parent having primary physical custody, and the other parent seeing the child every other weekend and maybe occasionally on weeknights.

Many psychologists and other mental health professionals have found that allowing the children of divorced parents to be exposed to both parents frequently (and on a somewhat equal basis) is in the children’s best interest. While constantly transitioning the children between households can be hard on them, the prevailing wisdom is that ultimately the benefit they receive from having substantial custodial time with both parents outweighs the issues that arise related to the shuffling back and forth.

For a disabled child, these traditional custodial arrangements may not make sense. Some children with disabilities need to minimize the transitions between households and spend longer periods of time with each parent. The reason for this is that for many children with disabilities, especially children diagnosed with autism, a disruption to their daily routine can have a negative impact. Disruptions can affect behavior and school performance and result in added stress for both the child and the parents. Perhaps instead of an every-other-week schedule, employing a two-weeks-on/two-weeks-off schedule or even an every-other-month schedule will suit your child best.

In addition to finding the right custodial schedule, parents of disabled children need to recognize how important communication is; communication is key when it comes to minimizing disruptions or changes in the child’s routines. The more open each parent is with the other parent about what the daily routine looks like at his or her home, the easier it will be for the other parent to replicate that. Ensuring that the routines in each household complement each other and serve to avoid any negative impact on the child is the best way to help a child transition back and forth between households.

Child Support Considerations

The North Carolina Child Support Guidelines do not specifically contemplate a child with disabilities. That means, in some cases, support for a disabled child will not differ from the support obligation for any other child. The disability may be of no consequence to the actual amount that is owed pursuant to the guidelines.

There is one way the guidelines do in fact address disabilities, however. On our child support worksheets you will notice a field for ‘extraordinary expenses.’ Pursuant to our guidelines, this field is reserved for expenses related to special or private schools needed to meet a child’s educational needs, and expenses related to transporting the child between the parents homes.

While the guidelines do not specifically consider a child’s disability, the court always retains the discretion to deviate from the child support guidelines. The judge can either order more or less than the guideline amounts based on what the child actually needs, but the party seeking the upward deviation will need to provide evidence to support the deviation. Evidence of elevated childcare costs, medical expenses, transportation expenses, and the like are examples of extra expenses that the parent of a disabled child may incur, and in turn could result in grounds for a deviation from the child support guidelines.

Your child’s disability also does not have a direct impact on the duration of a child support award. Our statute provides that child support terminates when the child becomes emancipated or when the child graduates from high school. Specifically the North Carolina General Statutes 50-13.4 provide, “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.”

You’ll note that our statutes do not make an exception to the duration of child support for children with disabilities. Despite the fact that some children with disabilities lack the ability to become self-supporting at the age of majority or even become employed, the law doesn’t provide any framework that can obligate a parent to pay child support longer for a disabled child. The only way in which the parent of a disabled child will end up paying child support longer than the age of 18 is if the parent agrees to do so outside of a court order, or if the child stays enrolled in school while making progress to graduation (again, but not past the age of twenty).

SSDI Benefits

Some disabled children will qualify to receive social security support, and parents often wonder about how a disabled child can qualify and how it will effect any child support obligation.

First, it is worth noting that there is no regular social security disability benefit available for disabled children; there are very limited circumstances for disabled children to receive social security income.

One such situation is where the disabled child whose family has low income and little resources; these children can receive Supplemental Security Income (SSI) so long as they meet the disability requirement set forth by the Social Security Administration. In these situations, the parents’ income is most likely low enough for the guidelines to require the minimum support order of $50 per month. Regardless, SSI benefits are specifically excluded from income pursuant to our child support guidelines, and thus will make no impact on a child support order.

Another situation in which a child may receive social security benefits (whether disabled or not) occur when the parent of the child is receiving social security retirement or disability benefits (SSDI). This rule applies if the parent is now deceased and was entitled to or actually receiving SSDI benefits before becoming deceased. This benefit is considered an “auxiliary” benefit.

Our guidelines specifically provide that SSDI benefits received for the benefit of a child as a result of the disability or retirement of a parent are treated as income attributed to the parent on whose earnings record the benefits are paid. Additionally, the guidelines further provide that said benefits are deductible from that parent’s child support obligation. The guidelines further provide that if the Social Security benefits received by the child exceed that parent’s child support obligation, no order for prospective child support should be entered. The court can of course, decide to deviate from the guidelines and still order prospective child support if evidence supports the deviation.

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