Getting divorced is a typically messy affair in itself, much less when there are children to the marriage. Even after divorce proceedings have concluded, Parties and their children will still have to adjust to a “new normal” post-divorce.

The typical struggle will only be made more difficult when a special needs child is involved. In this article, we will seek to define when a child may be considered special needs and how Parties ought to conduct themselves during divorce proceedings.

When Does a Child Have Special Needs?

A child may be viewed as having special needs if they are born or diagnosed with:

• Physical disabilities;
• Behavioural disabilities;
• Emotional disabilities; or
• Learning disabilities.

When supporting a child with special needs, it is understandable that the transitional period following a divorce will necessarily become more difficult for the child and Parties.

The Ideal Approach for Parties to Adopt
Rather than expending energies fighting each other, Parties can better channel their efforts into ensuring that their special needs child is least impacted by their divorce as possible.

While this approach would ideally be adopted in all divorce cases with children involved, when it comes to a child with special needs, it becomes even more imperative that Parties’ focus be on their child and their best interests and wellbeing.
This is because the child’s higher level of needs may predispose them to being more greatly affected by the Parties’ marital dispute. Furthermore, a special needs child is likely to face additional difficulties in adjusting to a change in routine post-divorce.

Determining the Care Arrangement for the Child
As part of implementing the aforementioned approach of putting differences aside and placing their child at the forefront, Parties should work to discuss and create a parenting plan for their child.

Notwithstanding how Parties will no longer be husband and wife, the fact that they will always remain the child’s parents will remain. As such, Parties should be prepared to co-parent even after divorce and make arrangements on:

• Care and control

1. For a child with special needs, a shared care and control arrangement is typically not recommended. This is because the child’s higher level of needs may necessitate a stable and consistent environment for them to thrive.
2. Parties should thus determine objectively who amongst them would be more suited to act as the primary caregiver and have sole care and control of the child.
3. This would involve a realistic assessment to decide which parent is better positioned to tend to the child and provide them with the higher level of supervision required.

• Access

1. Given that one Party is likely to have sole care and control of the child, proper access arrangements should be made for the other Party.
2. Access is not meant as a way for the parent without care and control to maintain a close bond with the child. Instead, this non-caregiver Party would ideally still play their part in actively supporting the child.

• Child maintenance

1. Both Parties’ collective obligation to maintain and provide for their child will continue even after divorce. Typically, these obligations will last until their child either reaches the age of 21 years, or completes their first university degree, whichever comes first.
2. However, it may be that the child’s special needs call for lifelong financial provision, even after the child turns 21 years old. As such, it would be best for Parties to make far-sighted plans to ensure that their child remains well-supported in the long run.

It is therefore important that the Parties do their utmost to maintain an amicable relationship with one another, in order to preserve healthy and open communication channels. This will greatly assist both Parties in co-parenting their child well. Parties may also wish to:

• Establish a Trust – to ensure that their child’s medical and educational needs are provided for;
• Execute a Will – to plan how their respective estates are to be distributed (in a manner that best benefits their child) and to appoint a Testamentary Guardian;
• Purchase Endowment Insurance Policies – this would ensure that their child will still be well-provided for in the event of the Party’s passing; and
• Appoint a Testamentary Guardian – this allows their child to be cared for and looked after by a trusted relative or family friend.

Engaging a Family Lawyer
It is strongly recommended that Parties find their own support groups to help them through the difficulties that they are facing. One should also engage a good Family Lawyer that will best assist Parties and understand how to support the best interests of a child with special needs.