In the final episode of our Special Needs Children in Family Law series, Brian Walters and Jake Gilbreath detail their experience handling divorce and custody cases involving children with special needs and discuss common complications in court with these types of cases.
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Jake Gilbreath: All right, well welcome back to “For Better, Worse, or Divorce”. I’m Jake Gilbreath along with Brian Walters and as part of our series today we’re going to be talking about family law cases involving children with special needs and how we address some of the most frequently asked questions for families that have that situation when going through a divorce or a custody case.
So I guess let’s start by talking about the most common stuff that we see in family law cases, now every single family’s different and even if you see a diagnosis that maybe you have more experience with than another or you’ve seen more in your career, every single child is different. We don’t just slap labels on kids and that tells us exactly how they’re going to be. But it does give some direction and we see a lot of cases with kids that are on the autism spectrum, and we see a lot of kids with learning differences like dyslexia, ADHD, speech delays or cognitive delays. Sometimes you see some of the behavioral diagnoses with kids that are bipolar or ODD, they can have anxiety. Sometimes they’re more physical ranging from a child that has asthma or food allergies all the way until you have a child that may have more severe physical disabilities. Every single family’s different. But it is an issue if you have a family with a child that has special needs, then it is something that’s going to have to be taken into consideration by the parents when they’re trying to work things out and ultimately by the judge, that the judge has to decide.
So, Brian, sort of first and foremost, you have somebody come into your office and they have a child, or multiple children that have a special needs. What’s the first thing you’re trying to understand from the client when they come in and talk to you about that situation?
Brian Walters: I guess the first question is, is there conflict? The classic example of where there probably isn’t conflict is a child has a heart defect and they got a pediatric cardiologist that says, “This child needs surgery to correct a valve defect in their heart. Get a second opinion.” That’s exactly the same thing. There’s probably not a conflict at that point. So really is there conflict and if so, what is it about? And then do we have a legally tenable case to argue it? Because there’s certain arguments that are not going to make it in a courtroom and some that are depending on how the judges or juries tend to see things in your particular jurisdiction. So it’s kind of those three things that I look at and want to talk about first.
Jake Gilbreath: Yeah, and we’ve seen it unfortunately. You would think this stuff would be straightforward. Like you said, the doctor says it’s this, what’s the dispute? I’ve seen, and sometimes I think, there is a good faith disagreement about maybe where a child is at with their special need.
If you have a child in the autism spectrum, maybe mom thinks the child’s a little more severe on the autism spectrum than another. And I don’t know if understandable is the right word, but that’s something that you understand where the conflict comes from, at least particularly if you have different providers viewing it differently. But there’s been cases, I know you and I have both litigated, Brian, where it’s more on the nose where, and bizarre almost, where one parent says, “My child has this special need.” And the other parent has says, “No, my child does not have that special need.”
And that could be, and we’ve seen the extremes on both ways. I’ve seen where kids, one of the first cases I litigated as an associate with Jim Piper however many years ago that was, was the child was really struggled with bipolar. He was 12, I think, at the time and really had a hard time and was working really intently with his psychiatrist, unfortunately gone inpatient, I think twice, even at that age had gone inpatient and had a psychiatrist that he really was working with.
So he had a psychiatrist he was working with, and this dad, he was just not involved in the child’s treatment in his life, but just decided to roll in after the fact and announce to everybody that he didn’t agree with the diagnosis. And which, by the way, led me to tell a quick war story, one of Jim [Piper’s] better deposition questions was, “Do you disagree with your child’s diagnosis?”
“Well yeah, I disagree with the diagnosis.” “Okay, what is the diagnosis?” And the dad said, “I don’t know.” Which led to the appropriate follow up question was, “Let me understand this, you disagree with your child’s diagnosis and you don’t even know what it is?” Dad was like, “That’s right.”
That case had to go to a trial because the dad’s position was I should get custody of this child because he is not bipolar and I disagree with the psychiatrist and we had to unfortunately have a multi-day trial over that, which turned out to be very successful for our client. But it was a sad situation.
On the other extreme, there are situations, and they’re really sad, where one parent slap a label on it or whatever, but you have a parent that is claiming a child has a special needs and it has not been diagnosed or maybe it’s not to the extent that they claim it is. And those cases get, we’ve litigated those cases as well. And again, you don’t have to necessarily slap a label on what’s going on there, but we’ve seen those cases.
So that goes to your point though, Brian, it’s like why do we start with this? Are the parents on the same page about what the issue is? And then I guess the next discussion is, let’s say you are on the same page about the diagnosis, what do you all think about as far as the appropriate treatment? Because that can look differently too, right, Brian?
Brian Walters: Exactly. And there’s another option which is that we have two different diagnoses, or different variations on a diagnosis, or diagnosis that have changed over time. I dealt with that in a hearing last week, a hearing one diagnosis of where this child was on the autism spectrum by one doctor. And then we have a more, somewhere different on the spectrum by a later physician, and we’re not sure if that’s because of its later in time and therapy and treatment had helped or the child had just changed or because there’s a different, anyway.
So all those things can occur and it’s the same thing with the question of treatment. You might have two different recommendations of treatment, but let’s assume you have the same recommendation or just one recommendation of treatment and you’re right, then there’s debates about that. And one person may want to follow the recommended course of treatment.
It’s possible that they both want to modify it in some way and rather than one following and one not. So there’s all kinds of variations on this and I think a lot of what we’re assuming here is we’re going to just rely on that there’s one expert that’s going to drop out of the sky and fix the problems. But that’s not the way it works necessarily for several different types of reasons.
But to answer, I think your fundamental question, is yeah, that’s just as much of a problem as figuring out how to try to get the parents to agree on what the actual issue is.
Jake Gilbreath: Yeah. Just think about this in the real world. You could be happily married and raising your child together and you still get multiple opinions from multiple sources. You go to one doctor, they say this, another doctor says that. It’s one of the challenges of raising a child with the special needs is you kind of have to turn into medical doctor yourself, or psychologist or psychiatrist yourself, as a parent with a child with special needs. And that’s a challenge for folks that are together in raising a child in the same household. And it’s even more of a challenge when somebody’s going through a divorce.
Compounded, like we talked about, obviously if one parent is not listening to medical advice, it makes the problem even more difficult. But it’s difficult even if the parents are trying to follow medical advice and there’s just different messages that they’re getting or just different judgment calls that you have to make as a parent.
So guess ultimately that comes back to in the family court system, what is it that we can address at the end of the day? And when I have clients that talk to me about kids with special needs and going through a divorce or custody situation, when you have a child or multiple children with special needs, it always sort comes back to what does the court order address?
And we say it all the time with families that have special needs or don’t, ultimately we’re talking about conservatorship, we’re talking about possession access, and we’re talking about support just like any other family. It’s just those decisions of what we do with those three categories may be different or may be tweaked to accommodate the child’s special needs.
So conservatorship, how do we make decision making? Issues that come up for kids with special needs on conservatorship, first of all, it’s educational decision. Folks always think that educational decision is just where the child goes to school. And that is obviously a major educational decision, but there’s more than that. Does your child need a 504 plan or IEP plan and can the parents get on the same page on those accommodations about whether not the child needs accommodations or individualized education plan or what have you?
And folks have, if they’re true joint managing conservators, they have to agree on stuff. It could cause a situation with one parent doesn’t want accommodations and one parent does. And that could be something that would have to be litigated. And then of course kind of tied to that in a lot of special needs, particularly again like autism disorder, autism spectrum disorder, dyslexia, ADHD, stuff like that, tied to that is how do we make psychological, or in some cases psychiatric decisions, for a child?
Just because people are joint managing conservators doesn’t mean that we make joint decisions. A court can allocate which parent makes that decisions or how we make those decisions, and that could be life changing for a child. If one parent’s put in charge of psychological or psychiatric cares, and is not appropriately caring for the child, that can be a life changing decision of who actually makes the decision about psychological or psychiatric care.
Because if you all are true joint, if it’s truly joint, the parents have to agree for a psychological or psychiatric decision to be made, then there really is just one parent who’s the decision maker because it’s the parent that says, “No.” That’s something I was taught right off the bat as a young associate. Folks are truly in their court order, say you have to agree for something to happen, the parent that says no is the real decision maker because they have veto power and sometimes that works and a lot of times that doesn’t work.
You have to have a decision maker at the end of the day and figure out who’s the appropriate decision maker. So, Brian, it sounds like you’ve litigated that even as recently as last week, but what type of arrangements do you see when it comes to it, and I guess let’s talk about psychiatric and psychological because that’s the most common dispute, although education’s tied to that, but psychological and psychiatric disputes. If you have parents that can’t get on the same page for whatever reason, what do we do to try to resolve that?
Brian Walters: It’s a good point and I think it’s important for folks to realize that a judge is not going to sit up there and make decisions for your child in the sense of, “You’re going to do this or you’re going to do that,” in almost all cases. What they’re going to do, and you certainly don’t have the judge on speed dial with, “Hey, my ex-spouse won’t take him to the psychiatrist tomorrow, can you make him?”
Unfortunately that’s not the way it works. Or maybe fortunately. Instead the courts usually are going to pick a dispute resolution mechanism. So if there is a dispute, because again, the hope is always that the parents figure it out together, decide what they’re going to do within the bounds of the law and do that and they’re done. But if not, there’s got to be a way to resolve those disputes. And there are not many options.
Either parent #1 gets to decide or parent #2 gets to decide is the choice 99% of the time. Now maybe the court’s going to say they need to talk about it or confer or consult together about it. Or maybe you tell them in advance, and they have some type of response they can make. But that’s generally what’s going to happen. And that’s a tricky situation.
And the other alternative is to appoint some type of third party as the tiebreaker, but that is pretty rare and is actually questionable, to me, whether the court can really even do that or if that’s even a good mechanism.
So that’s usually what you’re going to get out of a court. Not, “Yes, you can do this.” Or, “Yes, this child’s got to do this.” It’s going to be mom or dad or whoever is going to make these decisions under some kind of mechanism.
Jake Gilbreath: Yeah, and the court’s going to want to hear from parents, what’s your plan? If I put you in charge, which doctors are you going to listen to? Which professionals are you going to listen to? Or Parent B, if I put you in charge, what are you going to do? And they’re also going to look at who’s going to actually try to reach a joint decision with the other parent if possible. Try. Ultimately if you have one parent that’s not looking out for what’s best for the child, then one parent’s going to have to make the decision.
But courts do want to see parents try because nobody knows a child better than the parents. Of course, they’re going to want to see them try to reach an agreement. But sometimes for good faith reasons, sometimes for not good faith reasons, sometimes in between, there’s decisions that are going to come up that people will see it differently and that’s hard when married or when together. And it’s even more difficult when divorce and separated.
So a judge, like you said, a judge is going to have to decide, but those are hard cases. It’s important that you, first obviously, take them seriously, but also that the lawyer involved has litigated these types of cases before, they know which professionals to call. Because it’s not even necessarily the child’s training professionals are going to come in and testify. A lot of times they do, a lot of times they do kicking and screaming, who actually wants to come in and get it in between two parents in a dispute? But a lot of times the child’s treating professionals come in but sometimes it’s a neutral professional that’s going to come in.
It’s not uncommon, and we work with these experts, but it’s not uncommon for a court to appoint or the parties to agree on maybe a psychologist or psychiatrist being appointed that hasn’t seen the child that’s going to review records and talk to the professionals or have a custody evaluation done or Guardian ad litem, or an amicus, somebody to gather this information for the court because it is a hard decision for a judge. And ultimately this is a judge decision.
A jury does not decide rights and duties. Other than the right to determine the primary residence, but psychological and psychiatric decisions, educational decisions, those will always go to a judge. It’ll always be a judge to sign that unless the parties have agreed to an arbitration. But it’ll always be a judge deciding that.
And so if you’re the judge, it’s like, “Give me all the information you can to make sure I don’t mess this up.” Because the last thing you want to do as a judge is pick one parent and find out that they screwed up treatment and this child’s not getting their needs met. But anyways, point being a judge, a lot of times, is looking for an additional layer of professional looking at this. So there’s all the information gathered, it’s not with a spin on it and it’s a neutral party presenting this to the court. And then again the lawyers have to know what they’re talking about.
It drives me crazy whenever I watch hearings or I participate in hearings and lawyers are throwing out terms and they’re getting it wrong or they haven’t educated themselves on what the special needs are or what it actually means. I think you see a lot. My personal complaint is you see a lot of that with autism. People not understanding that’s a spectrum. People throwing out kind of out of date terminology like Asperger’s and stuff like that and just not really understanding the actual diagnosis and the actual disorder and the spectrum.
But you see that, I think throughout, lawyers not educating themselves on what’s going on. Not only with this diagnosis but what’s going on with this child and what it means. These cases can go south really quickly if you don’t educate yourself on it. Just like the parents have had to. The parents have had to become many mini doctors for their children and as the lawyers you had to become, ultimately I’m not the professional, but I had to be knowledgeable about this stuff in order to confidently talk about it in court and to be able to advise our clients.
Because ultimately these cases you want them to work out before having to do what you have to do recently, Brian, and go down to the courthouse and fight about it.
Well, let’s talk about possession schedules. And this kind of relates to a common question I get is, “What do I do if the child needs this treatment and the other parent just won’t do it or doesn’t take it seriously?” Child’s supposed to be on medication and every single time she goes to dad’s house, he throws the medication in the trash, child’s got food allergies and every single time he goes to mom’s house, the peanut butter’s out or they’re not taking it seriously or they’re going to restaurants without wiping down the table or whatever. What do you do?
I guess you can have a court order that says, “Don’t be an idiot,” but those are rarely enforceable or followed. And so what do you do with that, Brian? If you have a parent that drops the ball every single time they’ve got the kid?
Brian Walters: It’s a problem. I was thinking, the example that you just gave about the medication that’s not given and it’s not, you don’t know, it’s not given. One of the parent is not going to tell you, “I threw the medication in the trash.” And if you have a two year old or five year old or something, they’re not going to be able to report back to you accurately about it. And so what do you do? That may be half the problem is trying to figure out what’s happening over at the other house.
You hear snippets from your kid or your kid’s friends or the other parents or whatever, but you don’t really know. And that’s a big evidentiary problem. If you go in there and say, “Well dad’s not giving our child their required medication.” And the dad says, “Yeah I am.” Guess what? People don’t always tell the truth in court, especially family courts. So it’s a problem.
And so let’s use your example. Let’s say that there is important meds that the child has been prescribed. It’s important to the child’s health, safety, and welfare. And the court does believe, let’s say, dad is not giving this child the medication, what do you do? He’s already supposed to do it. I guess the court could say, “You better do it, let’s try it again.” And the outcome’s probably going to be the dad hiding it better, giving him a sugar pill or something if the kid’s telling on him.
And so the only solution in that case might be, dad can’t have this child, any period the child has to have the medication every 12 hours. Dad can’t have the kid more than 12 hours at a time because we can’t trust him to give the meds. So instead of getting a full weekend, he gets Saturday from 8:00 AM to 8:00 PM or something like that. That might be the solution. It’s a pretty harsh outcome, maybe, in some ways, but that may be the only thing available to the court. Just is what it is.
If there’s a learning disability, typically the non-custodial parent has Thursday overnights during the school week and Sunday overnights in a school week on their weekends. And well maybe that’s not real good for the child to kind of transition. Maybe they need to be sort the primary parent’s home every school night. And that’s something that the court does too. So possession schedule certainly could be an issue, I agree.
Jake Gilbreath: And it’s a spectrum like all this is, right? It could be this extreme. One end, it’s like you said, “Okay, Thursdays aren’t going to be workable because dad or mom don’t recognize the learning disability and they can’t get it done or what have you.” And on the other extreme, like you said, it’s somebody just actually putting the child in danger by not doing medication or not recognizing physical disabilities or nut allergies or what have you.
I’ve had cases where it is really scary what you see some parents do. And I’ve had cases where, and again extremes on both ends, I’ve had cases where the special need is overblown, or frankly even made up by one parent. They’re sad cases, but I’ve seen that. So don’t think that that’s not out there. But I’ve seen the other extreme where you have a parent that will put a child in danger because they hate their ex so much and the ex believes in the diagnosis, listens to the doctors, and a parent is so upset with their ex-spouse or ex-partner that they can’t get past that.
And so we see these families all the time. The mom says the sky is blue and so dad says the sky is burnt orange or vice versa. They just can’t agree on the time of day just because they hate each other so much. Or one side hates the other side so much, which is always sad when you see that in family law cases. We see it a lot. It’s always sad when you see that.
It’s dangerous when you have that with a child with special needs. Mom goes and talks to the doctor, the doctor says, “Your child has this special need.” And dad can’t get past his anger of mom and says, “Well, you’re doing this somehow, and so I’m not only going to ignore the doctor, I’m going to take affirmative steps to put this child in danger.” So those are the extremes. It’s the extreme of, “It’s made up.” And used for whatever horrible, nefarious purpose, consciously or subconsciously. On the other extreme, it’s really real and really dangerous. You have parent not taking it seriously. And then a million cases in between.
It just goes back to, we sound like a broken record on the podcast, but it really is a spectrum and it depends and every single family’s unique. And I know this has been your experience, Brian. I think all the judges that we practice in front of, I think, try really hard to come up with a solution for each family, special needs or not. They try to not just cookie cutter every single family, although most families do fit into kind of standard orders, but particularly whenever we have children with special needs, I see our judges work really hard.
I’m not saying they a 100% get it right all the time. We’re all human. I see them trying to make it work. If there’s good lawyers who are presenting the information to them and explaining to them kind of how this unique situation affects the child, is it going to affect this family moving forward?
Brian Walters: Yeah, I agree. That’s one of the reasons we practice statewide is that there’s 254 counties in Texas, so 254 different family law systems. But I agree with you, I’ve been very, very positive in my experiences with both the judges and juries and really attempting their best to figure out what’s best for what’s often in a very tragic, conflict ridden, sad situation.
But lawyers matter. Geez, it is true what you’re saying about a lot of lawyers that don’t know the procedure or the evidence rules and to expect them to also know about some disability that they have no experience with is probably asking a lot for most of these lawyers, but not something we’d put up with in this firm.
Jake Gilbreath: Yeah. Well, and I guess on the positive side, end on the positive side, and there’s other stuff we’ll talk about with special needs kids in this series with support and financial considerations in it, but ending on a positive, they’re really rewarding cases. Just like raising a child with a special needs, raising a child with a special needs is a challenge. It’s daily work, it’s emotional, it’s difficult, but it’s one of the most rewarding things in the world. And frankly, litigating these cases, or resolving them or whatever our role is, but representing families with children with special needs is a really rewarding part of our practice. And I know you and I, and the associates that work with us, really enjoy these cases. Not easy, they’re not easy cases, but they really are rewarding. So we can end with that positive note and we’ll be doing more on this series for representing families with children with special needs. If you like what you heard today, as always, do us a favor and leave a review. We really appreciate feedback. It helps us better the podcast, it helps us come up with topics, so you can always email us at firstname.lastname@example.org. We love feedback, we love reviews. I’m Jake Gilbreath and I’m here with Brian Walters and we appreciate you all for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of “For Better, Worse, or Divorce”, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at email@example.com. Thanks for listening. Until next time.