Having a special needs child presents parents with childcare and decision-making complexities which need to be addressed during a divorce.  The flexibility of the Collaborative Process allows parents to engage in longer-term planning, something the traditional divorce often does not allow time or space for.

         Of course, the Collaborative Process focuses on the immediate care of the child: creating an appropriate parenting plan, allowing for the necessary treatments and therapies, accounting for the costs and expenses associated with the additional support and care that is required.  But it also provides an opportunity to think bigger.

            Under normal circumstances, once a child turns 18 years old, they are no longer considered a minor and, accordingly, are no longer subject to the terms of the parenting plan, which outlines the parenting and decision-making provisions for that child.  However, when a special needs child is not likely to attend college or otherwise live independently upon reaching the age of majority, those (or similar) provisions must remain in place.

            As part of their divorce judgment, the parents can consent to a court order regarding the child’s continued dependency.  The court then enters a finding that the child will not be considered emancipated upon reaching age 18.  In some situations, that is enough.

            However, some institutions – medical providers, financial organizations, and the like – are not satisfied with a non-emancipation order.  They do not understand that a child can remain subject to the parenting plan even beyond age 18, and they require that the now-adult child be the subject of a guardianship—a legal proceeding that names an individual or individuals to make decisions for the child’s benefit.

            Using the Collaborative Process, the parents can discuss and agree during the initial divorce discussions about guardianship-related items that are likely to arise later:

• When to apply for the guardianship;
• If the parents live in different counties, where to apply for the guardianship;
• Whether to apply together for the guardianship, or whether one parent will be the sole guardian;
• If applying for a co-guardianship, whether the guardians will be required to act jointly or whether each will be empowered to act independently;
• How costs for securing the guardianship will be allocated;
• And more.

            Knowing this information going into the child’s early adult years allows the parents to approach the child’s 18^th birthday with knowledge, with a plan, and with less trepidation.