I get it. Every child is different. And, when your child has special needs, your family may have issues that the average family doesn’t. When it comes to a divorce and custody situation, it makes things a little bit more difficult (or, maybe, a lot more difficult).
Of course, a lot depends on the severity of the child’s need. Is your child one who just has specific additional medical needs, or one who will never be able to live independently? There’s a wide range of disability and, as a result, a wide range of things that are appropriate under different circumstances. I’m an attorney, not a doctor, so I don’t view myself as an expert on any particular medical conditions; I can, however, tell you that we’re in the habit of using doctors as experts to provide testimony in cases where the child’s physical, medical, or mental condition is called into question, and we can use that testimony to ask the judge for a custodial arrangement that works for your family.
That’s not to say, of course, that you’ll necessarily be thrilled with the custodial arrangement, or that it’ll be easy as pie to get one in place. Having a child with special needs makes the situation more complicated (as you can probably imagine), but it’s not impossible to work things out. Let’s discuss in a little more detail.
Child support with a child with special needs
Children with special needs often have expenses and needs that are far beyond what other children have. In general, though, it’s probably pretty accurate to say that the child support guidelines aren’t all that generous; we hear that from parents all the time. (Like, literally, every single day!)
Still, there are two different (but related) issues that come up when we’re discussing how to pay for the expenses incurred by the child. Child support, obviously, is one, but unreimbursed medical expenses are another, particularly when we’re talking about a child with special needs.
When it comes to child support, the amount you’ll receive by statute is based on a formula. The formula takes into account both your income and your child’s father’s income, as well as any support paid by either of you to children born of other relationships, the amount paid for work related child care, and the amount paid for health insurance for the child (the child only – not the total amount paid). You pop in those numbers, and the amount of support you’re owed will be automatically generated.
In a primary physical custodial situation (where the non custodial parent has the child for 89 days or fewer within a calendar year), support doesn’t change based on how much time dad (assuming he’s the non custodial parent) spends with the child. In a shared physical custodial situation, on the other hand, (where the non custodial parent has the child for 90 or more days within a calendar year), child support does change based on how much time dad spends with the child. In a shared physical custody situation, it’s based on a sliding scale; the non custodial parent will pay less in child support the more time he spends with the child. So, if dad has 90 days with the child, he’ll pay more than if he split the year with you and had the full 182.5 days. (I’m not debating the merits and demerits of each custodial arrangement now; I’m just discussing the consequences as it relates to child support.)
Shared physical custody doesn’t necessarily mean that the child is split evenly; as I mentioned a little bit ago, it just means that dad has a minimum of 90 days in a year. It CAN mean that the child is split evenly, but that’s often not the case.
Either way, though, child support is based on a formula (and it’s just that, in a shared physical custody situation, the formula raises or lowers the guideline amount based on the amount of time that the non custodial parent has with the child). Basically, according to how much income you and your child’s father earn combined, you have a child support guideline for your child that you share pro rata based on your income.
Deviation of child support obligation
It is possible to get a deviation on your child support obligation. Though child support is based on a formula, you can ask for more if the situation warrants it. I don’t see deviations awarded very often, but it does sometimes happen—and, when it does, it’s almost always because you’ve got a child with special needs with above average expenses that just weren’t contemplated by the statute.
To get a deviation, though, you’ll need to take extra steps. You’ll need expert witnesses to testify to the expenses incurred by your child, and, as you’re probably already aware, that takes more time and costs more money than a normal child support case. Still, it’s not impossible, and if you’re hoping to get an upward deviation on your child’s father’s child support obligation, you’ll want to talk to an attorney about the likelihood of success in your particular case as soon as possible.
Imputation of income for child support purposes
Likewise, if your child’s father is a bit of a deadbeat, or is voluntarily underemployed (working and earning less than he is capable of earning), you might want to talk to an attorney about having income imputed to him for child support purposes. Imputation just means that, for child support purposes, we can assume that he earns more than he does, because he is capable of doing so.
Let’s say, for example, that your child’s father was earning $80,000 as a CPA. He was earning that all this time, but, when you split up, he said he’d be damned if he’d pay you child support, and he quit and started flipping burgers, earning just $17,000 a year. You could take him to court and ask that he be responsible for paying child support based on the $80,000 he was earning before, since he is voluntarily underemployed.
Again, we’re talking about a case where we’ll likely need witnesses and testimony to prove our case; we’ll call his boss at the CPA firm, for example, to testify that he quit instead of being fired. It’s a very fact specific determination, so it’s certainly not guaranteed, but it’s an option that you have.
Continuation of child support after 18
Generally speaking, it’s much, much easier to get a court to order that child support be continued after the age of 18 if you have a child support order in place before the child turns 18. If your child turns 18 and then you petition the court for child support to be awarded, or you and your child’s father separate after the child is already over the age of 18, you’re going to be up against more difficult roadblocks.
If you’re waning child support to be extended, you’ll want to talk to a Virginia custody attorney as soon as possible. A lot will depend on the level of need your child has and whether the judge feels that continued child support is appropriate in your case.
Unreimbursed medical expenses
As far as the unreimbursed medical expenses go, those are handled a little bit differently than child support. According to the law in Virginia, unreimbursed medical expenses are usually shared pro rata based on their incomes. (So, if dad earns 60% of the income, he’ll pay 60% of the unreimbursed medical expenses.)
This is in addition to his child support obligation, so you may find that this (in addition to child support) is enough to ease the financial burden on you a little!
Custody and visitation with special needs children
Things get even more tricky when it comes to custody and visitation. I haven’t found that judges automatically award custody to mom, even in cases where the child has special needs. If dad petitions the court for custody, the case will still proceed much like any other—using the best interests of the child factors to guide it.
If you’re afraid that your child’s father won’t keep up with the medical advice of the doctors or make sure that your child keeps his or her doctor’s appointments, it might be worth discussing with your attorney. Some judges are very swayed when mom’s attorney asks dad for the name of the child’s pediatrician or specialist (someone the child works with a LOT in dealing with his or her particular special need) and he can’t.
Children with special needs definitely present some difficulty when it comes to child support and custody and visitation, but by working with an experienced Virginia custody attorney, you can make sure you’ve got all your ducks in a row when it comes time to go to court. For more information or to schedule an appointment with one of our custody attorneys, give our office a call at (757) 425-5200.