Date: February 12, 2018Attorney: Lynne Strober

February 12, 2018
By Lynne Strober

Making decisions with regard to educational and medical issues involving a special needs child can be challenging for parents under ordinary circumstances, but is further complicated when parents who are divorced or in the midst of a divorce action are unable to agree on such important issues. Most judgments of divorce that contain joint legal custody language typically require that the parties must confer with one another about decisions involving the child’s health, education and welfare. Divorced parents who disagree about such decision making can be left at an impasse to the potential detriment of their special needs child.

Parents of special needs children have several options to address this potential problem in advance of a disagreement arising. First, one option is to have the judgment designate one of the parents with final authority to make education or medical decisions when there is a disagreement. The party so authorized can rely upon the expertise of school personnel, such as the child study team case manager, a teacher, or therapist, or, where applicable, a medical care giver, to help reach a decision. The opinion of such a person could be given great weight by the parties or a court.

Second, the parties can agree to utilize a parent coordinator, who could be an attorney or mental health professional, who would work with the family to assist them in resolving minor, and sometimes major, decision-making. The exact role of the parent coordinator should be clearly set forth in an agreement executed by the parties or set forth in a court order. For example, a therapist can be utilized to assist the parties with communication and decision making, and can either be a specialist in areas that concern the child’s special needs, or, to reduce costs, the parties can agree to utilize a therapist covered by medical insurance who is in-network. Usually parent coordinators have the authority to report to a court about issues that need to be addressed. If the parent coordinator thinks that additional therapists or other experts are appropriate, they can make that recommendation to the court.

Third, another option is mediation whereby the parties would utilize a mediator, with or without counsel, to assist them in resolving any disputed issues.

Fourth, another option is to put in place, in advance, a procedure to avoid potential delay in decision making which could negatively impact the child. For instance, a default provision can be included in an agreement providing that, if a party fails to attend parent/teacher conferences, IEP meetings, medical appointments, on presentation of such proof to the court, the party loses his or her ability to provide input. With this option, each party must be able to demonstrate their active and continued involvement in the issues concerning the child as a condition for participating in the decision making process.

Regardless of the approach taken by the parties, it is essential that the language in any agreement or court order be as specific and clear as possible so there are no questions later on as to how to proceed and how to reach decisions. For example, the agreement could provide that, if emergency medical care is required for a child, the parent who is caring for the child at the time should immediately make arrangements to provide the care and reach out to the other parent immediately by text, email, calling, etc. If the parents cannot agree, then an emergency the treating doctor’s recommendation should be followed. If it is not a dire emergency, open issues need to be decided in a timely way so that the child can move forward.

An experienced family law attorney will be able to draft appropriate language that will include possible protections for their client and establish a protocol comfortable for the client and efficient enough to deal with whatever circumstances arise and resolve the issue within a reasonable time frame. The clearer that the agreement or court order spells out how decision making will be conducted, the better off the child will be. If the agreement that exists currently is not specific enough, the parties can apply to the court for the entry of an order that provides more specificity and clarity for the parties. Alternatively, the parties can always enter into a consent order to clarify the existing language in a judgment of divorce or court order to assist the parties in more effectively and expeditiously resolve their conflict resolution.