The parents of a child with special needs have a higher divorce rate than the overall population. Unique and complicated issues can arise when parents of a child with disabilities seek a divorce. Below is an overview of issues that should be considered in a divorce involving a special needs child:
Parenting Time Schedule. Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act ("IMDMA") specifically provides that when a court is allocating parenting time " according to the child's best interests," the court shall consider many factors including, the "mental and physical health of all individuals involved" and the "child's needs." See 750 ILCS 5/602.7(a), (b)(7) and (b)(8). In light of the clear consideration for a child's health, a more typical alternating parenting schedule may not be feasible given a child's specific needs or disability. For example, it may be more difficult to transfer a child with certain disabilities between homes. Additionally, transfers and transitions and/or extended time away from one parent could be more challenging for certain children. The bottom-line is that both the parents and the attorneys will need to be prepared to think "out of the box" to make sure a child has quality contact and time with both parents in a way that best meets his or her unique needs.
Of note, removal of a child from the State pursuant to section 609.2 is typically complicated and challenging. Such a request is likely to be even more challenging when a child with special needs is involved as travel may be more difficult as might being away from medical professionals. On the other hand, the support of family and other institutions in such a situation might be a compelling reason to allow a requested removal.
Parental Decision Making. Similar to the allocation of parenting time, the allocation of significant decision-making responsibilities should also be determined in accordance with the child's best interests and, like parenting time allocation, shall consider a child's health and needs. See 750 ILCS 5/602.5. Under the law, the areas of decision-making that are allocated between the parties are: education (including the choice of schools and tutors); health (including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs); religion; and extracurricular activities. See id. Typically, parents will need to make more frequent decisions...