Child Support and Custody Considerations for a Special Needs Child

Custody and support issues can be complicated to sort out in any typical divorce. When you and your spouse have a child with special needs, however, these matters become even more complex. Who makes decisions about visitation, healthcare, and education? Does one parent have more resources to care for the child? Is the child physically able to move back and forth between homes? These types of negotiations and decisions must be made carefully and thoughtfully.

Child support and the special needs child

North Carolina determines child support using factors set in the NC Child Support Guidelines. These factors include things like:

• Each parent’s income
• Custody arrangements
• Childcare costs
• Health insurance costs
• Education costs
• Extra expenses for medical conditions
• Number of children

These guidelines do not provide any specific language for children with special needs. However, the court does have discretion in assigning the amount of child support, as it does so first and foremost in the best interest of the child. Even though there are no hard and fast legal requirements for special needs child support, you can help plan for your child’s needs through:

• Parenting plans. You and your co-parent can come to agreement on the proper amount of support for your child, above and beyond state guidelines. You can do so with the help of an experienced family law attorney to ensure your agreement is legally sound and fair to all parties involved.
• “Extraordinary expenses.” Children with special needs often have expenses exceeding the costs of traditional healthcare and education. If your child requires things like private school, transportation, and home care, your attorney can argue these extraordinary costs go above North Carolina child support guidelines.
• Deviation from guidelines. As mentioned earlier, the court has discretion in assigning child support if it is in the best interests of the child. As the parent with primary custody, you must provide evidence your child needs this extra support. Your child support attorney can help you put together the evidence you need to prove this to the court.

Once you have secured support for your child, you might wonder if this support extends beyond the age of eighteen.

How long will my special needs child receive child support?

Under North Carolina Statute 50-134, child support terminates when they reach age 18, are legally emancipated, or graduate from high school. If a child turns 18 but has not yet graduated high school, support continues until they graduate, quit, or reach age 20 – whichever comes first. The statute does not address extending support for children with special needs, so without a separate binding agreement, your child’s support will run out once they meet one of these requirements.

It is crucial you and your co-parent address this issue when negotiating child support in your divorce agreement to ensure your child continues to have access to all the resources they need to continue living a full and happy life. Talk to our attorneys to find out more.

Child custody and the special needs child

Determining custody of a special needs child presents challenges unique to traditional child custody negotiations. Because the child likely has special health and educational needs, the parent with physical and primary custody must be able to properly care for their child and make the right decisions. Parents must consider:

• Do I have the resources necessary to care for my child?
• Is the child comfortable/able to move back and forth between homes?
• Is my house equipped, modified, or accessible for my child’s needs?

Again, all custody decisions are made in the best interest of the child. If you and your co-parent are unable to come to agreement, your child custody attorney can help.

What happens when my special needs child turns 18?

When a disabled child reaches the age of majority, you can still seek custody as a parent, under North Carolina Statute 50-13.8: “For the purposes of custody, the rights of a person who is mentally or physically incapable of self-support upon reaching his majority shall be the same as a minor child for so long as he remains mentally or physically incapable of self-support.”

Don’t forget your estate plan

If you and your spouse are divorcing and have a child with special needs, ensure you update your estate plans. A strong estate plan for your special needs child or adult should take the following into consideration:

• Guardians. You may need a short-term guardian in the event of an emergency, like a sudden illness or car accident. It is crucial you have someone trusted in place to care for your child if you are incapacitated. After your child turns 18, you may need to set yourself and your co-parent up as legal guardians to continue making legal and medical decisions on behalf of your child. You should do this well in advance of their 18th birthday.
• Special needs trust. Many individuals with special needs are eligible for valuable government benefits like Medicaid and Social Security. However, leaving your child with a sizable inheritance will cause these benefits to terminate. A solution to this is a special needs trust, which is meant to supplement these government benefits beyond what they can provide.

It is important to work out an estate plan for your special needs child with the help of an experienced attorney. Appointing a guardian or trustee is a complicated decision and you should understand all aspects of the process. These trusts are also subject to certain laws and regulations, which is why we advise avoiding “DIY” trusts and wills that could jeopardize your special needs child’s future.

If you have questions about the unique considerations for your special needs child during divorce, the family law attorneys at Epperson Law Group, PLLC can help. We are here to answer all of your questions and put your mind at ease about your child’s future. To schedule a consultation with an experienced and compassionate lawyer, call 704-321-0031 or fill out our contact form today. We serve families throughout Charlotte, Concord, Boone, and Weddington.