Divorce is always a difficult and painful process. This difficulty is significantly compounded when the parties have a special needs child. A special needs “child” can be a child over the age of 18 who is not capable of supporting him or herself. There will be issues related to custody of a child over 18 and issues related to child support of a child over or under the age of 18. Courts in Ohio may make a child support order for a child over the age of 18 even after the child has reached that age.
Courts cannot grant custody of a child over the age of 18. Once a child has reached 18, the parties must seek guardianship of the child through the Probate Court. They can serve as co-guardians. Often the parents would like to make arrangements for time-sharing and care of their over-18 special needs child and they can certainly make provisions in a separation agreement that will at least reflect their intent. However, the Domestic Relations court will not be able to enforce a parenting schedule or other parenting issues for a child over 18. Nonetheless, , it is very important for the parents to discuss how they want to continue parenting their over-18 child after the divorce.
If the special needs child is under the age of 18, the parents will want to enter into a very detailed parenting plan that will address how medical treatment will be decided, how educational decisions will be made and what will occur in the event of a disagreement.
The Court’s authority to make a child support order is established not only by the relevant statutes in Ohio but also by Castle v. Castle, which discussed child support orders for unemancipated children. This child support order can go on indefinitely.
By the time the parties are getting divorced, their child is undoubtedly already receiving services of some kind, whether it is SSI, Medicaid, etc. The parties have also probably set up some form of special needs trusts, of which there are several kinds, as part of their estate planning. The attorneys representing the parties will want to involve a special needs attorney to address unique issues related to the divorce, including how the payment or receipt of child support might impact benefits the child is receiving and other significant issues related to how the parties are going to manage the trusts after they are divorced.
An experience family law attorney who has handled cases with children with special needs will be invaluable in navigating these complicated and difficult waters.