Child Custody and Special Needs Children

Every family is different, and every child is different. The unique privilege of raising a special needs child can be challenging. This is especially the case when going through a divorce or child custody situation. When raising a child with special needs and going through a divorce or child custody situation, it is crucial to understand what the Texas Family Code and Texas Courts provide for guidance and orders concerning children with special needs.

Common Special Needs

In our practice, we most often see families with children with the following special needs:

• • Physical: muscular dystrophy, asthma, epilepsy

• • Developmental or Learning Differences: Autism Spectrum Disorder, dyslexia, attention-deficit/hyperactivity disorder, speech delays, cognitive delays

• • Behavioral/Emotional: Bipolar Disorder (I and II), Oppositional Defiant Disorder (ODD), anxiety disorders

• • Allergic – Food allergies, such as nut allergy, egg allergy, or milk allergy

Addressing the Needs of the Child Through the Court’s Order

A child custody order and a divorce decree can and will address many of the issues that will come up in the journey of raising a special needs child. Specifically, the court order should address:

1. Conservatorship – how decisions are made for the child;
2. Possession and Access – what time will the child spend between the two houses;
3. Child Support – how much child support will a parent pay and for how long;
4. Injunctions – any prohibitions the Court may put in the court order

Conservatorship:

Every child custody order will contain an allocation of conservatorship rights. The Texas Family Code outlines rights and duties that are assigned to the parents. For routine matters, the Texas Family Code states:

Sec. 153.073.  RIGHTS OF PARENT AT ALL TIMES.  (a)  Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:

(1)  to receive information from any other conservator of the child concerning the health, education, and welfare of the child;

(2)  to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

(3)  of access to medical, dental, psychological, and educational records of the child;

(4)  to consult with a physician, dentist, or psychologist of the child;

(5)  to consult with school officials concerning the child’s welfare and educational status, including school activities;

(6)  to attend school activities, including school lunches, performances, and field trips;

(7)  to be designated on the child’s records as a person to be notified in case of an emergency;

(8)  to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and

(9)  to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

(b)  The court shall specify in the order the rights that a parent retains at all times.

Sec. 153.074.  RIGHTS AND DUTIES DURING PERIOD OF POSSESSION.  Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:

(1)  the duty of care, control, protection, and reasonable discipline of the child;

(2)  the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

(3)  the right to consent for the child to medical and dental care not involving an invasive procedure;  and

(4)  the right to direct the moral and religious training of the child.

For more significant decisions regarding the child, the Texas Family Code outlines these conservatorship rights as follows:

Sec. 153.132.  RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR.  Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights:

(1)  the right to designate the primary residence of the child;

(2)  the right to consent to medical, dental, and surgical treatment involving invasive procedures;

(3)  the right to consent to psychiatric and psychological treatment;

(4)  the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;

(5)  the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

(6)  the right to consent to marriage and to enlistment in the armed forces of the United States;

(7)  the right to make decisions concerning the child’s education;

(8)  the right to the services and earnings of the child;

(9)  except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and

(10)  the right to:

(A)  apply for a passport for the child;

(B)  renew the child’s passport; and

(C)  maintain possession of the child’s passport.

The Court most commonly allocates the conservatorship rights outlined in Section 153.132 as one of the following:

1. True joint: The parents must agree on the decision in order to exercise a 153.132 right (e.g., if one parent wants the child to undergo an invasive medical treatment, the other parent must agree);
2. Independent: Either parent can make the decision independent of the other (e.g., if one parent wants the child to see a counselor and the other parent does not, the parent can still take the child to a counselor); or
3. Tie-breaker: One parent is the tie-breaker and makes the final decision (e.g. if one parent wants the child to have a 504 plan, and the other parent does not, the “tie-breaker” parent gets to make the final decision

As you can see, the conservatorship rights can be fundamental in deciding how to raise a child with special needs. If parents are “true joint” and not on the same page regarding the child’s diagnosis, it could be detrimental. For example, a child on the autism spectrum may need a 504 education plan or an individual education plan (IEP). If one parent does not believe in the diagnosis, he or she may block the decision of the parent attempting to receive accommodations for the child. Or another example; if a child has a behavioral disorder and a psychiatrist recommends medication, an uninvolved, uninformed, or misinformed parent may try to block the medication.

Fortunately, the Court can allocate conservatorship rights and—if appropriate—modify the child custody order. Furthermore, in the most extreme situations, the Court can even limit a parent’s rights under Sections 153.073 and 153.074.  This includes the right to receive mental and physical health information, consult with providers, and make non-invasive medical decisions.

Possession and Access:

In addition to conservatorship, every child custody order will contain a possession and access schedule. While the Standard Possession Order is the presumption set forth in the Texas Family Code, it is just a presumption. Families are unique. And families with a special needs child are incredibly unique. The Court will make a possession schedule that makes sense for the child with special needs. For example, the Court may consider:

1. Crafting a possession schedule that takes into account the child’s medical treatment;
2. Allowing flexibility for the custodial parent, if necessary, to address the child’s special needs; and
3. Limiting a parent’s access to the child if that parent does not adequately address the child’s special needs.

Child Support

The court order will also address child support for a special needs child. Although the Texas Family Code sets forth guidelines for child support, the Court may order child support in excess of the appropriate guidelines. The Family Code states when setting child support, the Court may consider:

Sec. 154.123.  ADDITIONAL FACTORS FOR COURT TO CONSIDER.  (a)  The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.

(b)  In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:

(1)  the age and needs of the child;

(2)  the ability of the parents to contribute to the support of the child;

(3)  any financial resources available for the support of the child;

(4)  the amount of time of possession of and access to a child;

(5)  the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6)  child care expenses incurred by either party in order to maintain gainful employment;

(7)  whether either party has the managing conservatorship or actual physical custody of another child;

(8)  the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9)  the expenses for a son or daughter for education beyond secondary school;

(10)  whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11)  the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12)  provision for health care insurance and payment of uninsured medical expenses;

(13)  special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14)  the cost of travel in order to exercise possession of and access to a child;

(15)  positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16)  debts or debt service assumed by either party; and

(17)  any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

Furthermore, the Texas Family Code states:

Sec. 154.126.  APPLICATION OF GUIDELINES TO ADDITIONAL NET RESOURCES.  (a)  If the obligor’s net resources exceed the amount provided by Section 154.125(a), the court shall presumptively apply the percentage guidelines to the portion of the obligor’s net resources that does not exceed that amount.  Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.

(b)  The proper calculation of a child support order that exceeds the presumptive amount established for the portion of the obligor’s net resources provided by Section 154.125(a) requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child.  After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties.  However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

Thus, it is often the case that a child with special needs will have “proven needs” above and beyond what would be covered by “guideline” child support. A Court will often consider these proven needs and order above guideline support so that the child’s special needs and related financial aspects are adequately addressed.

Furthermore, if a child is disabled, a Court may order child support to continue past the age of 18. Tex. Fam. Code s. 154.001.

Injunctive Relief

Finally, a Court may order injunctive relief to address a child’s special needs. Often, this entails specific court orders that order the parties to either affirmatively do something or refrain from doing something to address the child’s needs. Some examples include:

1. Injunction against exposing the child to certain foods if the child has a food allergy;
2. Order requiring a parent to comply with a child’s medication regime;
3. Order requiring a parent to take the child to medical appointments during his or her period of possession;
4. Injunction against allowing the child to participate in particular activities due to special needs; and
5. Injunction against a parent interfering with the physical or mental health treatment of a child.

Suppose a parent violates the injunctive relief of the Court. In that case, this could result in a change of conservatorship rights and possession and access, in addition to other remedies at law.

Conclusion

Raising a special needs child is a blessing. But it is also a challenge. It is even more challenging raising a special needs child in two different households. Fortunately, a court order can address many concerns and situations that come up in the journey. It is critical that, when going through a divorce or child custody situation, you and your advocate explain to the Court the need for a well-crafted court order that addresses the unique aspects of the child’s life and care.