Parenting children with chronic illnesses after Divorce

November is diabetes awareness month and it reminded us of several clients we have represented over the years whose children were Type 1 diabetics and the unique issues that were involved in those cases. In fact, when you have a child with any type of chronic illness or disability, family law matters may be more complicated than a traditional support or custody agreement. We understand how stressed many caregivers are and we work very hard to minimize the additional stress caused from any type of family law dispute. Some of the most common issues and questions that arise when co-parenting a child with chronic illness include:

How is child support computed for a child with a chronic illness?

In Texas, all types of needs beyond the scope of “normal” fall under a category called Special Needs. This might include autism, asthma, allergies, type 1 diabetes, learning disabilities, blindness, deafness, behavioral issues, emotional issues and physical limitations.

Child support for parents at or under the cap of $9,200 per month (2019) is computed via a formula by the Attorney General of Texas. However, parents may agree on amounts differing from the standard computation based on the proven needs of the child.

Proven needs would include special schools, tutoring, counseling, therapy, etc. If the parents do not agree on these additional needs, the burden to prove these would fall to the primary parent.

Many items of a medical, dental or psychological or physical nature that are not covered by insurance would be grouped into unreimbursed medical expenses. Those expenses would be split between the parents, usually 50/50 but sometimes the responsibility percentages are different and can be negotiated.

How does having a child with a chronic illness affect custody agreements?

Custody agreements come in two forms – an agreement through mediation or a court decision at trial. In the case of a Mediated Settlement Agreement, the couple can agree on most any schedule, support amounts and any other relevant information. These agreements would become part of the final order. If the parties cannot agree and they go to court, the judge will hear evidence and arguments from your attorney and the other parent’s attorney and will then make a decision. A litigated order is not likely to include any specific information regarding the care and support of the child.

*I would assume they would have questions about if it were litigated and there was no specific information regarding care, how is that determined?

Can modifications to custody agreements be made if the child’s health is not taken care of when visiting with one parent?

When a child’s medical/mental/physical needs are not being met by a parent, the other parent must file a lawsuit called a Suit Affecting (or to Modify) the Parent-Child Relationship. The petitioning parent would need to prove to the court what actions or non-actions are putting the child at risk. The case could be settled in mediation or continue in traditional litigation.

In Texas there are certain rights that are generally allocated to both Conservators (parents) as joint. The rights involve.

Management of the estate of a child

Consent to medical, dental, psychiatric, and invasive surgical treatment.

Decisions regarding the child’s education

The court can award one parent sole decision making for any of these rights.

Can restrictions on diet, activities (like contact sports or sleep overs) be written into custody agreements.

The short answer is yes, if the parents can agree to the restrictions, they can be included into the agreement. If they do not agree, then the answer is probably on a case by case basis. Also, you should keep in mind that as children grow older, their needs, wants and restrictions will change. An order that is too narrow is a recipe for additional litigation.

In Texas, the general rule is that each parent has the right to use his/her time with the child in the manner that the parent feels is proper.

What happens when one party violates the custody agreement?

The other parent would need to file a Motion for Contempt. The parent would need to be able to prove that the violation(s) were true. Each incident is a separate point of contempt, so as to show how prevalent and pervasive the contempt is (not just a one-time mistake).

Can allowances for future medical care be require or requested?

Generally, medical care is split between the parents based on a ratio outlined in the latest order. The parent incurring the expense would need to submit the bill to the other parent showing that it had been submitted to insurance for payment within a period of time (based on the order). This is very often a problem because the bills may not get submitted to the other parent timely, or there are expenses going both directions, and one parent decides to “net” the payments. It is difficulty to keep up with the back and forth but you must keep detailed records in order to hold a the other parent in contempt for non-payment.

There are some ways to minimize the problems with these payments. There are apps available for parents to communicate not only calendar events, but also to submit bills to the other parent for payment. Some parents jointly contribute to a bank account or have a credit card designated for joint child expenses. I’m sure that some parents just use VENMO. Again, record keeping is essential.

Also, one parent may feel that something like orthodontia is a necessity and the other parent feels as if it is cosmetic and refuses to participate in to cost. These types of expenses must be clearly defined in the order.

Having an experienced attorney is essential to getting a great custody order. Any attorney who has seen how all of this can explode into continual litigation and acrimony for the co-parents has a better chance of advocating for a detailed order and payment vehicle.

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