Family Law Blog

5 MUST HAVE's in a Divorce Agreement When There Is a Child with Special Needs

Children with Special Needs

Divorce is difficult for all families. However, when a child with special needs is involved, it is exponentially more difficult. Taking care of a child with special needs is hard enough when there are two parents in the same home. Now with divided caregiving resources and parents who may not be getting along well, the task of successfully caring for a child with special needs can feel insurmountable. However, with proper post-divorce planning, you can help these parents maximize their chances of successful co-parenting post-divorce.

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5 Must Have’s

1) Create a conflict resolution clause. This clause should be specific to how the parents will resolve different opinions they have about caring for the child. Typical conflicts that can arise post-judgment include: Diagnosis, treatment, education, and any additional supports that a child may need. Assume there will be problems later, even if the child’s care and functioning is stable at this time.

2) Identify a professional and/or a professional process for this conflict resolution. Do not wait until later to select this professional or process. Children with special needs do not have time to waste. They need things to get done for them. So identify the process (e.g., mediation, parenting coordination) and the professional (e.g., John Smith, Kate Jones) by name. Advise parents to meet with this professional soon after the signing of the Agreement. Begin the introduction/intake process early, so that this step can be removed later when a conflict arises. It will save time for the child.

3) The parents should agree that joint legal custody is defined as “both” not “or”. Many more decisions need to be made for a child with special needs. For example, signing off on an IEP or 504 plan is typical. If the parents disagree, and one parent signs off on educational programming, the school may be able to proceed forward. This can create a huge legal quagmire. So if they agree up front that all decisions pertaining to the child are “both”, that may help to avoid some difficult situations later.

4) Proactively identify an expert or experts. If any conflicts arise around the child’s diagnosis, treatment, supports, or educational programming, who will the parents consult with if they can’t reach an agreement? Unfortunately, most decisions that need to be made for these children can be black and white. For example, should the child be medicated? There is generally no compromise option on that. Most parents who have children with special needs have an expert (or team of experts) that work with their child. The parents may want to identify this ongoing expert as the consultant they will meet with to help guide decision making. They may also want to identify a different, non-treating expert, as a second opinion in any of these conflicts.

5) Specify the co-parenting communication system. It is typical in many of these families that one parent is often the one bringing the child back/forth to appointments, meeting with providers, corresponding with professionals, etc. Therefore, a communication process needs to be identified about how this information will get communicated to the other parent. 

Sealing and unsealing Court Records

Cal Rules of Court, rule 2.550 and Cal Rules of Court, rule 2.551 set forth the requirements for sealing and unsealing court records. Per rule 2.550(c), court records are presumed to be open unless the law requires confidentiality. The court may order a record to be filed under seal only if it expressly finds and states facts that support the order, including an overriding interest that overcomes the public's right to access of the records, a substantial probability that the overriding interest will be prejudiced if the record is not sealed, and the lack of any less restrictive means to achieve that interest. The order must be narrowly tailored and may include only those documents (or portions of documents, if practical) that need to be under seal.

The First District has held that there is no family law exception to the rules that govern the sealing of trial court files, and that a trial court must have compelling reasons for ordering files sealed. In In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406.

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Message from The State Bar of California

The State Bar of California is aware of an email phishing scam that is targeted at attorneys in a number of states. The email subject line says: “The Office of The State Attorney Complaint.” No such office exists.

If you received the email, please delete it immediately. Do not follow any links or open any attachments. If you do, your computer or cell phone could be exposed to a virus.

The State Bar of California’s Office of Chief Trial Counsel (OCTC) is responsible for receiving complaints, and OCTC staff may request a response from an attorney, typically by letter. When OCTC staff contact an attorney by email, they identify themselves with a standard email signature that provides their name, title and contact information.

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© Law Offices of Bobette Fleishman  | 2017