No sooner than you and your child’s father separate than you suddenly start dealing with all sorts of issues that would never have been issues before – one of them, or at least one of the ones that I often come across, is related to medical testing and diagnoses.
Maybe you’ve suspected for years that there’s something more going on than ‘normal’ developmental stuff. Maybe it’s taken you this long to get in to see the required specialist. Maybe something changed – something, even, related to your separation and/or eventual divorce – and now you feel that your child needs extra help.
It doesn’t have to be a question of specific special needs, though in some cases it is. There are a million different things that can present challenges during our children’s childhoods, from neurodivergence (your basic ADD, ADHD, autism spectrum, etc.) to actual physical diagnoses (childhood cancer or other medical complexity) and even mental health issues.
While, before your separation, you might have had no issue making appointments, taking the child to appointments, and seeking the care that you believe your child needs, after separation and/or divorce, your child’s father may suddenly present as a roadblock.
He doesn’t believe in the diagnosis. He doesn’t want to seek treatment. You’re exaggerating. You’re making it something it’s not. You just want to stay relevant. You just want to blame him. It may be a minor issue, but it’s really not as bad as all that.
It’s stereotypical, but I do find that dads – in general – struggle more with the idea of a specific diagnosis than mothers do. If you’re struggling in dealing with your ex (or soon to be ex), you’re not alone! But what can you do to make sure that your child gets needed medical treatment for whatever is going on?
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If you can’t agree on needed medical treatment, you’ll have to ask the court to determine whether it is in the child’s best interests.
With respect to this issue – as with almost any legal issue – you have two options. You either reach an agreement or you litigate.
In most cases, legal custody – the right to make (1) non emergency medical decisions, (2) decisions related to religious upbringing, and (3) decisions related to education – is awarded jointly between the parties. Unless your child is facing an immediately life or death situation, it’s non emergency medical care, which means that you and your child’s father are tasked with making these decisions jointly.
If he can’t agree, then you might have to petition the court, and even involve experts, to argue about why your child needs the medical treatment that you believe that he needs. A Guardian ad litem may be involved, too, and she may also make a recommendation to the court. Then, it’ll be up to the judge to decide.
What will happen from this point will depend, obviously, on the evidence you can introduce. It’s very different to discuss the possibility of looking into and diagnosing something than it is to convince a court to follow a particular treatment pattern, especially if its new or novel – or if there’s not enough scientific evidence regarding its efficacy. You should always talk to an attorney about the specific issues involved in your case to get individualized advice about the course of action you plan to take and your likelihood of success.
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Provision regarding health insurance.
Make sure there’s a provision regarding health insurance – and no lapse in coverage. The cost of health insurance coverage is included in the child support calculation, but it’s not a dollar for dollar reduction; it reflects your pro rata (proportional) share.
If your child’s father is military, ongoing health insurance coverage may be free (or minimally expensive) anyway.
Ideally, you and your child’s father will both have jobs that allow you to have health insurance coverage so in the event one – or the other of you – has a lapse in a job, the other can pick up heath insurance coverage for the kids. Health insurance coverage is important no matter what, but it’s especially important in the case of a child who is going to need extra testing, diagnostic work, medications, or treatment programs.
Unreimbursed medical expenses can be extra important if you have a medically complex child. In fact, I recently had a case like this, where the child had amassed a total of almost $60,000 in unreimbursed medical expenses over a four year period.
Under the statute, unreimbursed medical expenses are shared pro rata – proportionally – based on the incomes of the parties. So, if you earn 40% of the income, you only pay 40% of the unreimbursed medical expenses.
Some attorneys will try to sneak a 50/50 division in there, which sort of makes sense, but that’s not what the statute says. So, unless you actually earn 50% of the income, don’t agree to that provision! Also, make sure that you specifically include mental health services, orthodontics, prosthetics, or any other specific medical assistance you might need.
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Continuing child support and/or disability coverage.
In Virginia, you can’t get child support, even for a disabled child, after the age of 19 or high school graduation unless you’ve ALREADY got a child support order in place. If you separate or divorce after your child is beyond that age, you won’t be able to get child support.
You can look, instead, at disability coverage. I’d recommend talking to a disability attorney to see whether your child’s specific medical need rises to the level of disability, but that’s generally the way forward – rather than ongoing child support.
For more information, or to talk to an attorney one-on-one about the specific needs of your child, especially if your child’s father doesn’t agree, give us a call at 757-425-5200.