Divorce Mediation: The Best Forum for Families with Special Needs Children

May 1, 2015
Written by Lynne C. Halem

Families who have children with special needs constitute a significant percentage of the divorced population.  This should come as no surprise.

After all, marriage is full of trials and pitfalls.  Daily, the stamina of spouses is subject to testing.  Children, all children, present a mixed blessing.  Some times they may help to save a marriage; other times they add to the stresses of daily living in ways that parents are not able to handle.

Of course, statistics calculating the interactions of real live people cannot be analyzed so simplistically. Thus, to state that families with special needs children figure more prominently in the depiction of divorced couples cannot be taken at face value.  After all, there are many different kinds of special needs children, ranging from those with mild physical and mental difficulties to those who are severely handicapped.  The conclusion to be drawn here is only that the parents of special needs children may need to have more skills and agility in coping with family issues and with systems that pose problems for helping their children to thrive.  Schools, hospitals, and the like are not easy to negotiate, posing a challenge for all who seek to maximize the services available for their children.  These obstacles may constitute a hurdle that presents “one problem too many” for the family unit.

Regardless of divorce statistics and regardless of the accuracy, or lack there of, of the statistics, parents with special needs children who elect to mediate their divorce, or at the least their parenting plans and custodial arrangements, produce agreements that best serve their children.

Mediation presents a collaborative, problem-solving approach for identifying and dealing with present and future issues and problems. 

The more questions that need to be answered, the more problems to be resolved, the more mediation is the process of choice.  The back-and-forth interactions of legal negotiations or the imposition of judicial rulings do not provide the data or the forum for dealing with the considered decision making needed to map out the future of a special needs child.  When the situation is complicated by divorce, it is essential to involve parental interactions with each other, with their children, and with the organizations and services from whom their children receive or may in the future, receive services.

Essential Questions to be Addressed: 

• Will the child with special needs move back and forth between two Homes on an equal basis with his/her siblings, or will there be one primary home?
• And, if the latter is the case, how is time with the other parent structured?
• Are both homes equally safe for the child?
• Are there, for example, any physical requirements or any location requirements (e.g., near schooling)?
• Not to be overlooked is cost. Will assets have to be used, such as the marital home, have to be liquidated to finance an agreement?

As the questions multiply, the collaborative nature of the mediation process provides an ideal forum for crunching numbers and weighing advantages and disadvantages which are focused, on achieving the long-term best interests of the child.

• How is child support calculated for parents with special needs children? Are there specific expenses required that need to be recognized in a certain way? Does one parent bear the burden of the “extra“ costs, or will it be shared equally?  Is one parent’s financial liability offset by greater responsibility for the child’s day-to-day care by the other parent?  Is ability to pay and ability (or desire) to assume more of the hands-on oversight and involvement not considered a trade-off, but rather a reflection of what is most logical and practical in the best interests of the child?
• Are any of these costs eligible for government support by the state or health insurance, or both, or might they be, in the future?  How would that affect the financial settlement? And, if the laws should change, will a return to the mediation table be required? Or, can parents agree in advance how to handle such changes?
• What kind of custodial arrangements are made in the event of the death of either parent?   Who would be the custodian or custodians in the event of the death of both parents prior to the emancipation of the child?
• How will information about the child’s IEP and other evaluative reports be shared?  Will parents attend regular assessments together? How will decisions about the child be made?  Are both parents equal decision makers, jointly making decisions?  Or is one parent the primary decision maker;  with or without input from the other parent?
• How do parents determine what services they should seek for their special needs child?  What if an advocate needs to be retained?  Is private school a consideration to be pursued by the parents outside of the public school system and at their cost or through advocacy of the school system?
• How will the daily routine be structured, and who will oversee that schedule?  If both parents work, what arrangements will need to be made for after-school care, for both the special needs child and siblings?  Exactly how will   parental time be divided for holidays, business trips, and school vacation periods?

Although I have enumerated only a smattering of the many questions to be answered and issues to be resolved, the mediation process holds the key to reaching equitable agreements that most adequately serve the whole family’s needs.  At CMDR, a skilled mediator knows the questions to ask and how to guide the couple in problem solving that is focused on the child’s best interests.

Parents who feel that they play important roles in the determination of their child’s welfare typically are more committed to the care and financial support needed to carry out key objectives.  Participation in the mediation process not only inspires collaborative problem solving, but also helps to build a life-long partnership between parents.

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