In a divorce proceeding, the tendency may be to compartmentalize the “minor children” in one category: that they do not have any special needs, and that they are developmentally progressing at the same pace or they do not have any mental or physical health issues. It is important to share with your attorney and conversely for the attorney to find out from the client if the minor children involved in a divorce proceeding have special needs. For example, if there is a minor child who has been diagnosed with Pervasive Development Disorder (Autism), it may change the dynamics of how a custody proceeding should be litigated or negotiated. This would consequently impact the legal custody of the child, physical custody of the child, and parenting time. As an example, while there is a presumption of “joint legal custody” in Minnesota, the special needs of a minor child may require closer examination of whether or not this presumption should be upheld. For example, if one parent does not even acknowledge that the child has special needs, it is not going to be in the best interest of the minor child that legal custody be shared as decisions will need to be made and depending upon the precise special need, prompt attention might be necessary. For example, in cases involving Autism, there should not be a delay for intervention as there is a small window in which therapeutic intervention may be extremely beneficial. If one parent is not even acknowledging that there is an issue, it can cause that window to slam shut thus hurting the minor child’s development.
In a case involving special needs, expert witnesses, such as the child’s treating psychologist would be equally as important. Moreover, just like there are no two children who are exactly alike, no two children have the exact level and gravity of special needs. If the child has special needs, it is very important to understand what exactly those needs are; whether or not there is a cure for the special need (for example, while there is no cure for Autism, if diagnosed early, appropriate interventions and therapy is extremely helpful); it is important to see the parent in the context of whether or not they will be adequately able to meet the minor child’s best interests, which would obviously include their special needs.
In a case involving custody and parenting time, it also is extremely beneficial and critical to choose the appropriate professional. For example, if the parties are going to participate in Mediation, it is extremely important that the mediator have experience dealing with special needs and developmental needs of the minor children. It may also be helpful or appropriate to have a psychologist or the treating professional involved when resolving custody and parenting time issues.
