The Special Needs Child in Divorce

April 27th, 2012

Divorce is a difficult time for all family members, but especially for the children.  A child that has a serious illness or difficulty prior to the initiation of a divorce may have such problem accelerate during the divorce process. We call such child the “Special Needs Child”. This child has apparent or diagnosed emotional/medical problems.

Special Needs children are seriously impacted by the decisions made during a divorce.  It is important for parties to determine how meaningful, regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a special needs child.

1. Child with Emotional Issues:

Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child.  It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs of the child.

Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.

2. Special Medical Needs

When a child has significant medical health problems or disabilities, parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation.  This may be compounded by the emotions and breakdown in the marital relationship. The court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions.  It is also important that the parties, along with the Court, work for a consistent treatment protocol for the best interest of meeting the child’s medical needs.

The real battleground in custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs.  Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs.  Major problems occur when there are differing views between the parents on how to best treat the problem, lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol to “impose” upon the family.

Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations.  In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions, then the focus of a custody case becomes one of which parent can best make decisions that are in the best interest of the child.

To make a meaningful decision on the care of the child, the court will need evidence of the following:

  • Which parent is the most involved in the decision marking as pertains to the relevant issue?
  • What are the competing theories of how to best treat the child?
  • Current opinions from the child’s physician and /or therapist.
  • What is the generally accepted treatment for the specific condition?
  • What is the likelihood of each parent following the protocol selected by the court?
  • How successful has the treatment been in the past?
  • What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
  • Which parent has shown a proven effort at recognizing the child’s needs and working to address them?

The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal, and the expert must be a specialist in working with the child’s specific problem.

The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving clients in the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333

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Women at Risk: The Hazards of a Bad Relationship

March 8th, 2012

Abusive men, and women (physical or mental), are all about control and frequently evolve from abusive homes themselves. Police desire to help abused women, but often even after a complaint has been filed, women will not pursue the charges out of fear. Feeling helpless, they are often terrified, brain-washed and really believe that they have nowhere to go. It is not uncommon for an abuser to be very charismatic and after beating his victim return home the following day with flowers showing great affection to his victim. Unfortunately, the victim tends to believe the transparent words “I’ll never do it again!”

One of the most frustrating things for family and friends outside a battering relationship is trying to understand why the abused person doesn’t just leave. It is important to remember that extreme emotional abuse is always present in domestic violence situations. Violence takes place in many forms, is unpredictable and can happen all of the time or just once in a while. Violence is criminal including physical and sexual assault. It is paramount to remember that physical violence, even among family members, is wrong and against the law.

Some of the reasons partners stay in domestic violence situations are:

1. Economic dependence.
2. Fear of greater physical danger or danger for children.
3. Fear of being hunted down and suffering worse beatings.
4. Survival. Fear that the abuser will kill.
5. Fear of emotional damage to children.
6. Fear of losing custody of children.
7. Lack of alternative housing.
8. Lack of job skills.
9. Social isolation resulting in lack of support from family and friends.
10. Social isolation resulting in lack of information about her alternatives and support systems.
11. Lack of understanding from family and friends, police, ministers.
12. Negative response from community, police, courts, social workers.
13. Fear of involvement in the court process.
14. Fear of the unknown, chronic anxiety, and/or depression.
15. Acceptable violence. Living with constant abuse numbs the victim so that they are unable to recognize that they are involved in a set pattern.
16. Ties to the community. The children would have to leave their school, and family would have to leave friends and neighbors.
17. Ties to home and belongings.
18. Family pressure.
19. Denial.
20. Loyalty.
21. Love. Often an abuser is quite loveable and loyal when he is not being abusive.
22. Shame and humiliation. “I don’t want anyone else to know.”
23. Guilt. They believe the abuse is caused by some inadequacy of their own.
24. Demolished self-esteem.
25. Lack of emotional support.

The following is a bill of rights for women in abusive relationships:

1. I have the right to ask for what I want.
2. I have the right to say no to requests or demands I can’t meet.
3. I have the right to express all of my feelings, positive or negative.
4. I have the right to change my mind.
5. I have the right to make mistakes and not have to be perfect.
6. I have the right to follow my own values and standards.
7. I have the right to say no to anything when I feel I am not ready, it is unsafe or it violates my values.
8. I have the right to determine my own priorities.
9. I have the right not to be responsible for others’ behavior, actions, feelings or problems.
10. I have the right to expect honesty from others.
11. I have the right to be angry at someone I love.
12. I have the right to be uniquely myself.
13. I have the right to feel scared and say “I’m afraid.”
14. I have the right to say “I don’t know.”
15. I have the right not to give excuses or reasons for my behavior.
16. I have the right to make decisions based on my feelings.
17. I have the right to my own needs for personal space and time.
18. I have the right to be playful and frivolous.
19. I have the right to be healthier than those around me.
20. I have the right to make friends.
21. I have the right to change and grow.
22. I have the right to be treated with dignity and respect.
23. I have the right to be happy.

Anyone can be a victim of domestic violence. Although both men and women can be abused, most victims are women. Children in homes where there is domestic violence are more likely to be abused or neglected. Even if the children are not physically harmed, they are likely to have serious emotional and behavioral problems and scars.

Abusers try to control their victim’s lives. When abusers feel a loss of control – like when the abused person leaves them – the abuse may get worse. If you are in an abusive situation, take special precautions when you leave. Develop a safety plan.

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Texas Divorce: How Long Will It Take to Get Divorced and Other Important Facts

January 28th, 2012

To file for a divorce in Texas, you must be a Texas Resident for 6 months, and you must have lived within the county you plan to file in for at least 90 days immediately prior to filing of your divorce petition. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.

Texas does not recognize legal separations.

It is possible to get a divorce even though the other party does not want the divorce to take place. Texas is a “no fault divorce state.” “No fault” means that one spouse does not have to prove the other spouse has done anything wrong in order to obtain a divorce. You cannot be held to a marriage because your spouse does not want to sign or refuses to participate in the divorce process. The court will enter divorce orders even if the other party refuses to sign them.

Texas requires a minimum 60 day waiting period before any divorce can be finalized. The 60 day period begins to run from the time the Original Petition for Divorce is actually filed with the court. In other words, the shortest time it will take to finalize a divorce in Texas is 61 days. On occasion, in domestic violence cases, there is an exception to the 60 day rule. If the parties are in agreement, a divorce proceeding can be finalized immediately following the sixty-day waiting period. On average, however, the time period is more likely to run 90 to 120 days in an uncontested divorce due to the crowding of court dockets and the time necessary for counsel to draft necessary legal documents and obtain the agreement of both parties regarding the wording of the final documents. If the parties are not in agreement, the time necessary to finalize the divorce will depend on the conduct of both parties and their attorneys, the court’s schedule, the matters in controversy and the complexity of the contested issues. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are deeply in opposition to an agreement on some or all of the core issues may take anywhere from several months to several years to complete.

As to the division of marital assets, Texas is a community property state. For more information on community and separate property, see our blog, Divorce: What is separate property and what is community property.

It is important to remember that, although the statutory waiting period to finalize a divorced is 60 days, it is more likely than not that your divorce will “not” be finalized on the 61st day following the filing of your petition for divorce.

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