Navigating Divorce with Special Needs Children | Episode 155

Navigating a divorce is never easy, but when you add a special needs child into the mix, the situation can become even more challenging. In this candid conversation, Ryan and Amy explore the various issues that arise when parents of a special needs child go through a divorce.  We touch on the importance of Individualized Education Plans (IEPs) and 504 accommodations in ensuring that these children receive the necessary medical and educational services. 

We also discuss how differing parental views on a child's abilities can cause conflict during divorce and the potential for stress and regression in children with special needs as a result of the divorce process. We delve into the impact of decision-making authority on parenting time, the challenges of navigating two different households, and the logistics of scheduling therapy sessions.  Lastly, we touch on the financial considerations associated with providing for a child with special needs, such as setting up a special needs trust. 

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya (3s):
Hey Everyone. I'm Ryan Kalamaya.

Amy Goscha (6s):
And I'm Amy Goscha.

Ryan Kalamaya (8s):
Welcome to the Divorce at Altitude A Podcast on Colorado Family Law.

Amy Goscha (13s):
Divorce is not easy. It really sucks. Trust me I. know Besides. being an experienced divorce attorney, I'm also a divorced client.

Ryan Kalamaya (20s):
Whether you are someone considering Divorce or a fellow Family Law attorney, listen in for weekly tips and insight into topics related to Divorce co-parenting and Separation in Colorado. Welcome Back to another episode of Divorce Altitude. This is Ryan Kalamaya This week I am joined by my co-host Amy Goscha Amy, how you doing?

Amy Goscha (46s):
Good, Ryan. How are you doing? What's new?

Ryan Kalamaya (49s):
Well, we have the eternal winter when we are recording this, but enough about the weather, we are going to talk about special needs. And so if, and children with special needs in particular. And if Listeners will recall our story about Eric, Melanie Wolf. you know, Eric leaves the counseling room when they Melanie tells 'em to that she's hired a Divorce lawyer and he starts looking at pictures of his children. And that as a parent is not gonna be any different of an experience. And the fears and concerns about one's child or children is gonna be pretty similar across the board. But what are the factors or things that really come up Amy in when, when we're dealing with a Divorce with special needs children with special needs?

Ryan Kalamaya (1m 37s):
Yeah,

3 (1m 38s):
So I think with special needs, there's a lot, there's a lot of layers that are going on because you have not only the layers of what does that child need developmentally, but you also have, you know, like what they're about to go through a Divorce. So when you're looking at, you know, kind of a, you know, acceptance type model, usually the kid, when you're looking at the grieving process, they're usually one of the last to kind of get through that entire grieving process, you know, so you're looking at the stress of this pending Divorce and what kind of, what, how is that gonna impact the children? And I, you know, find, at least in my cases, that a lot of times children with special need might be, you know, sensitive, more sensitive in certain areas.

3 (2m 26s):
you know, And, we tend to see this comorbidity of, you know, stress and how it affects children with special needs and regression. So it can be constant.

Ryan Kalamaya (2m 38s):
Yeah. So we'll get into the stress and how that is something to people that have children with special needs n need to kind of be aware of that. But let's first talk, at least in my experience, Amy the medical and educational services and having particular agreements and addressing those in a parenting plan, which is, is ultimately the agreement that really guides how parents are going to co-parent after a Divorce or some sort of Custody, you know, de determination. And so can you tell our Listeners, the IEPs and 5 0 4 s, what people that have special needs, they're familiar oftentimes with those, but if Eric, you know, he hasn't been the primary father, hasn't really been that involved in that particular area, it might be a lesson or a deep dive for him if Melanie has all those kind of intricacies and details spelled out.

Ryan Kalamaya (3m 35s):
So for Listeners that don't know, or just to lay the groundwork, what are we talking about with IEPs and 5 0 4 s and different considerations on the medical and educational services?

3 (3m 46s):
Yeah, so where I wanna start the discussion on medical and educational services is really a baseline just to give our Listeners a little bit of, I guess, some normalcy to when you're going through, you know, they, when you're dealing with these types of issues as parents, so you usually find even parents who are intact homes, they have various views on their kids and their abilities and their development. So it's not necessarily, you know, like wrong or you know, meaning that you're gonna have a lot of conflict and Divorce if you're going through a Divorce and you have different views on the ability of your kids. So when we're looking at IEPs and 5 0 4 s, usually how kids are getting diagnosed with, you know, special me needs is through the medical model.

3 (4m 32s):
you know, like your kid, you'll take 'em to the pediatrician, you fill out the, you know, the developmental tracking for how old your kid is to see are they on track for certain milestones. And if they're not, then your doctor will start talking to you about how is each parent seeing the child, you know, what are they exhibiting? So it usually starts kind of in the medical model, but once a child has a diagnosis, then you have to look at what are this child's educational needs. And so through, you know, the school system children can get essentially assessed to figure out what their needs are to make sure that their education needs are getting met.

3 (5m 15s):
So we have IEPs, which are Individualized education plans. And so that means that children who are found to be disabled under the law, a plan is put in place to have them receive specialized instruction to make sure that they're receiving that instruction, but also that they're getting the related services that they need. So that might look like, like in an elementary school setting, you might have a speech therapist, there might be an OT therapist, there might be a physical therapy. So what gets a little bit confusing, I think, for parents is that sometimes if children are receiving services through the medical model, they might not necessarily get those same services, you know, at school, but does get pretty complicated, you know.

3 (6m 1s):
But an I E P essentially will set goals and those will be reviewed by the education team and parent. It just depends on the school and when those meetings are. But kids also gonna have what's called a 5 0 4 accommodation. Do we need accommodations for a kid within the classroom? So it might just be modifications or instructions to the teacher. An example would be, does a kid need to be notified like three minutes before the change of an activity? So it can be as simple as something like that. 5 0 4 comes from, essentially it the, it's a federal civil rights law.

3 (6m 41s):
Essentially it prohibits discrimination against individuals with disabilities. And the point is to give, you know, these children access to education and if they need specific accommodations and modification. So those are kind of the two educational service, you know, plans and programs that would be put in place that parents need to understand.

Ryan Kalamaya (7m 3s):
I've seen this, Amit, I've also experienced it as a parent. My, my son, when he was two, he wasn't really talking And, so we had him evaluated and it turned out that he had kind of a muscular issue in terms of speech and so he was receiving services they were paid for and you know, now he's, he, he You can't really even tell it's a very common issue. But they, he was on an I E p I had ca a case, you know, recently where a child was dyslexic and so she was provided additional time and testing. And so those are just, and that was a 5 0 4 situation. So they're very common. I think that it's helpful for us as attorneys to understand the differences because we need to make sure that we walk through our clients to make sure that they're aligned.

Ryan Kalamaya (7m 51s):
If Eric and Melanie have a child that has an I E P, they're often going to go to those meetings together and make sure that they're on the same, you know, that they have the same goals and obviously their goals, but the way that they get there may differ. And if they're not communicating very well, then it can really cause, you know, some problems. But, and we'll get into some of the issues that we as lawyers confront Amy in terms of the practical considerations with school, private school versus public school and some of those other issues. But anything else that people should know about before we move on to how they can impact parenting time decisions?

Ryan Kalamaya (8m 33s):
A as far as medical and educational services?

3 (8m 37s):
I don't think in that, but I think we were gonna talk later on about the impact of stress. I think what gets pretty complicated pretty quick when kids are going through a Divorce situation is how does that impact of stress, you know, how does it essentially come out? Is it coming out with regression? you know, does a child, you know, if they're not diagnosed, is it regression developmentally because of the stress of the Divorce or is there really like a developmental issue that needs to be addressed? So it's just understanding that there can be different causes to what you're seeing as a parent from your kid. Kids

Ryan Kalamaya (9m 15s):
Life does not mean causation. So if a child is regressing or the acting out the issue, is it because of their special needs? And when we talk about special needs Amy, can you give us kind of some ideas of what are the things that we typically see most common in, in these divorces?

3 (9m 35s):
Yeah, so what you're seeing a lot of times are kids who have as a s d autism spectrum disorder, you're seeing kids who have, you know, dyslexia.

Ryan Kalamaya (9m 46s):
I've had some really unique ones, you know, both mentally, but then you also have the physical issues where, you know, children who have some sort of physical handicap. It really, you know, it can, cause when you talk about stress, I've heard just anecdotally, you know, that that parents with kids on the a s d, you know, on the spectrum that the Divorce rates are noticeably higher and that You can understand that stress dealing with a, a child or having a child with special needs that it just results in higher Divorce rates. And so those, they, but they have to be aligned because the children require that much more care because of those special needs, which is, you know, really problematic when you have two separate households.

Ryan Kalamaya (10m 33s):
So, you know, let's get into how these kind of issues impact parenting time decision Amy.

3 (10m 40s):
Yeah, so I mean directly relates to decision making authority. So if you know our co-parents and you have joint decisions, that means that even if you haven't gotten a diagnosis, you know, e like any decisions related to getting testing for that diagnosis. And then recommendations as to who are the providers for that diagnosis. you know, letting the school system, you know, do the, the testing for an I E P or 5 0 4, you know, you have parents, you know, we have a case where the child is com very dyslexic and the, you know, the school team has come and said, this kid needs to be tested and one of the parents said no, and there's joint decision making, you know, so it can become very problematic.

3 (11m 26s):
And then just the kid living in two different households where they need providers. you know, like where is the service? you know, where is the therapist gonna be located? you know, is do the parents live in, you know, like a, a close proximity or is there an issue with, you know, distance? So I think all of those things, you know, are related to decision making. And so if you're more detailed within the parenting plan on how those decisions get made or resolved is key.

Ryan Kalamaya (11m 55s):
Oftentimes because the needs are so great and obviously it depends on a case by case scenario. If we take our Eric and Melanie Wolf, you know, scenario, it oftentimes what I have observed is that Melanie will have an intricate, like she will know all the providers, the schedules, if the child is at home and she's taking care of that child, you know, Eric is just really focused on the business or the other child getting them to soccer practice or school and that, you know, then you've got this new paradigm where all of a sudden Eric is asked to take responsibility to for that the child with special needs and he's not as familiar with the medical providers.

Ryan Kalamaya (12m 41s):
And just as a reminder for people, the decision making, you're talking about education, medical, extracurricular, and religion and really it's the two, the me medical and the education because people can disagree do should we have a boarding school that is specifically for children of special needs or not even a boarding school, but do you have a education that's really focused on that special needs or do you try to normalize it and put 'em in a public school where they're surrounded by other children that, and with an I E P, they'll get those kind of special services parents Eric and Melanie can really disagree on that. And so it's a matter of the decision making that goes in the process by making those those decisions.

Ryan Kalamaya (13m 26s):
And they can be really emotional decisions that in other cases you don't frequently see.

3 (13m 33s):
Yeah. And I think that can just create more conflict and I think at least I see in a lot of cases, you know, the parties, if they're having a hard time reaching agreements on, you know, these, you know, choice of providers, what type of, you know, school choice, you know, a lot of times we try to put in a parenting coordinator decision maker and then you have to be very specific about what that person can do. But that can be helpful. I've found

Ryan Kalamaya (14m 0s):
In the parenting time you mentioned location, certainly we've seen it where, you know, if Eric and Melanie, if they live very far away from each other, if children are an age where they can drive for example, then that ameliorates that geographic divide. But if you have a child with special needs that can't drive or travel on a plane on their own or they, their schedule is such that, that that geography can really require some issues. you know, a child might be going down to Children's Hospital in Denver, I see up here in Aspen where you know, PE children, they might be diabetic or they might have some sort of condition that requires them to go down to to Denver.

Ryan Kalamaya (14m 44s):
That again can really impact some parenting time decisions.

3 (14m 48s):
Yeah, absolutely. And then I think another practical consideration as just the financial component when you're dealing with kids who need a lot of treatment, that's expensive and who pays for it, you know, so just to be very clear in the agreement how those costs get shared between parents,

Ryan Kalamaya (15m 4s):
There's, there are grants out there obviously depends on the financial circumstances. I one side of the case where, you know, my client, there was a child with special needs and she had received federal funding and the issue, the legal issue was that income for determining a child support. But you know, if we have extracurricular or extra ordinary medical expenses that can be factored in child support. So if a child, for example is diabetic And, we know that with the insulin that they are going to blow out the deductible or there might be some sort of medical expense that's gonna be factored into the a child support, but private school versus public school, those sorts of issues, they really are magnified, I think Amy in cases where children have special needs.

3 (15m 55s):
Yeah. And since we're talking about the financial piece that, you know, sometimes I talk to parents about, or at least my client when I'm dealing with a child with special needs, does a special needs setting up a special needs trust make any sense. So just for our Listeners, that's a discretionary trust. It's designed to provide for disabled individuals to supplement their care but also while maintaining, you know, like their ability to still qualify for certain public benefits. So, you know, there are certain circumstances where a special needs trust is something that parties can look at on the financial side.

Ryan Kalamaya (16m 33s):
And going back to my earlier kind of paradigm and I, you know, I we're obviously stereotyping here, you know, Eric could easily, I've certainly had, I, I have one case in particular that I can remember where the father was the one that stayed at home. But if we go back to the Eric and Melanie Wolf, you know, scenario where Melanie is at home taking care of the child with special needs, you know, one issue we deal with is can Melanie work in terms of what her income is going to be? And there is legal authority that we're not gonna impute Melanie or the court doesn't have to impute Melanie a full 40 hours per week that if she's taking care of a child with special needs that, you know, that is, is recognized as a kind of a valid reason for her not to be working at least full-time.

3 (17m 26s):
Right, exactly. And I think the last piece that I wanna touch on that is really important is just the impact of stress on children with special needs when parents are going through Divorce. We mentioned specifically that there can be regression issues developmentally, I think the solution to that is to get a psychologist involved and sometimes it's not just getting the child a psychologist, but also maybe there's, you know, like a family therapist that's helping each parent with, you know, how do you deal with this child, you know, who might have more sensitivities to stress, you know, so that parent doesn't get frustrated, you know, how do you deal with transitions to make them the easiest for the child, you know?

3 (18m 11s):
So I think that impact on stress, you know, should be dealt with early on to get parents on the same page.

Ryan Kalamaya (18m 18s):
I agree. And if they don't get on the same page then, you know, and you have to do some sort of evaluation. you know, previously in other podcasts, Amy, you and I have talked about ProRes and CFIs And, we just recently did a presentation to the Young lawyers division for Family Law, you know, special needs. This is kind of in my mind falls into that category where a parental responsibilities evaluator is likely gonna be involved because you wanna make sure that both an attorney and anyone else, including a an evaluator has some experience with special needs. It may not necessarily be with, you know, angel man syndrome or some other really unique special needs, but you know, to communicate to the judge or to really kind of provide some recommendations that are specialized to that particular child.

Ryan Kalamaya (19m 11s):
Because you know, if Eric lives near water and that is a consideration with both, you know, angel man syndrome, which I'm aware of, or autism where if a child's attracted to water, you would really want to have some specialized recommendations to make sure that the worst, you know, fear risk of any parent doesn't come to fruition. And if Eric and Melanie aren't able to agree, if Eric's saying, ah, that's not really a big deal, you know, I live near water, you know, that is a big deal, then, you know, then people can get into conflict. And having a P R E or an attorney that understands and has gone through those issues before that I think is really critical for people to consider when they're Navigating a Divorce with a child with special needs.

3 (20m 1s):
Yeah, and I think also just dealing with these issues and some of my cases and looking at their research, you know, kids with special needs have a higher percentage of having some other mental health issues or they can be, I guess more prone to depression or if you're dealing with like a teenager, like they might be more prone to, you know, suicidal ideation, you know, so it's to, you know, like that's also something, you know, to be aware of, to make sure that you're addressing not only just the special needs, but also like their mental health is super important.

Ryan Kalamaya (20m 36s):
You know, hopefully Listeners have a, an idea of some general kind of considerations. I think it is general each case and each, you know, child with special needs, the parents, they know that child at, you know, better than anyone else. And I think it's incumbent on parents to really look for, you know, the ability to reach agreements and it can be through compromise. Because if Eric and Melanie, if even if they may disagree about, for example, how often to, you know, observe, you know, diabetes, the insulin or you know, the various kind of issues that they could disagree on with autism or with, with, you know, any sort of other special need they going to a judge and having a judge decide for them is going to be really problematic because just like this episode's kind of scratching the surface on these various issues, you know, the people Eric and Melanie going to a judge, even if that judge you know, cares very deeply and has, you know, the some sort of working knowledge, there is no way that judge is going to know the particularities of that child like Eric and Melanie do.

Ryan Kalamaya (21m 50s):
So I think it's even more important for, you know, p people going through Divorce with special needs to look for the ability to compromise because they can really craft and customize their schedule and the process by which they make decisions that is gonna benefit their child well. Until next time, this is Ryan and Amy. Thanks for joining us on Divorce at Altitude. Hey Everyone. This is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight, or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode, visit Divorce at Altitude dot com.

Ryan Kalamaya (22m 30s):
Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me at Kalamaya.law Or 970-315-2365. That's K A L A M A Y A.law