Navigating Divorce or Separation with a Special Needs Child

About This Episode Podcast host NYC Special Education Attorney Adam Dayan talks to guests Andrea Vacca, Attorney and Owner of Vacca Law Group, and Josh Kershenbaum, Disability-Informed Mediator and Consultant discussed the topic of special needs children in the context of family and divorce law.

• Andrea works exclusively with couples who wish to dissolve their relationships with the least possible impact on their family by working within the collaborative process and mediation.

• Josh brings over 20 years of experience and expertise in the areas of education and special education law to his mediation and collaborative divorce practices.

• They discussed some of the challenges faced by families of special needs children when navigating divorce and separation, particularly in the areas of financial issues, parenting issues and finding opportunities for collaboration.

• They also discussed important considerations for the process:

• The challenges faced by families of special needs children when navigating divorce and separation can be significant.

• These challenges can include financial issues, parenting issues, and finding opportunities for collaboration.

• It is important to consider these challenges when creating an agreement for a divorce involving a special needs child.

• By working with experienced professionals, families can navigate divorce and separation in a way that minimizes the impact on their child.

Josh Kershenbaum, Adam Dayan and Andrea Vacca on the Curious Incident Podcast

(LISTEN) The Curious Incident Podcast Ep. 17 - Navigating Divorce/Separation with a Special Needs Child

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Do you have questions about your child's education? Call Special Education Attorney Adam Dayan at the Law Offices of Adam Dayan: (646) 866-7157 and request a consultation with our New York attorneys today.

Transcript: Navigating Divorce or Separation with a Special Needs Child on the Curious Incident podcast

Speaker 1: This is Curious Incident, a podcast for special needs families and your window into the world of special education. Special needs parenting can be challenging and we want to make it easier by providing you with the resources you need to help your child. Let's delve deep into the world of learning differently with your host, special education attorney, Adam Dayan. Adam Dayan: I'm excited to present my next guests on this podcast, Andrea Vacca and Josh Kershenbaum, on the subject of special needs and family law. I've known Andrea Vacca for the last five years. Andrea is the owner of Vacca Family Law Group, a boutique family law firm in New York City that works exclusively with couples who want to stay out of court when dissolving their marriages and relationships. By working within the collaborative law process and mediation, Andrea helps her clients to end their relationships without destroying their families. I've known Josh Kershenbaum for 14 years, dating back to our first meeting at a nationwide special education legal conference. Josh brings over 20 years of experience and expertise in the areas of education and special education law to his mediation and collaborative divorce practices. He devotes much of his time to helping parents of children and adults with special needs navigate divorce through mediation and collaborative practice. Andrea and Josh, it's great to have you here with me today. Josh Kershenbaum: Great to be here, Adam. Thank you. Adam Dayan: Of course. Before we jump in, I'd like listeners to understand how special education and divorce intersect. In general, where do you see the intersection between special education law and family law? Josh Kershenbaum: Well, it's a great question because I think this is one of those things where people don't automatically think of those two things as going together. I think a lot of people are curious and surprised to hear that special education law would have anything to do with divorce or family restructuring. But what we find is that when families are going through restructuring, whether it's through divorce or separation, and they have a child with disabilities, it's extremely helpful to have somebody on the team who has an awareness of the special education legal process. And there's a couple of reasons for that. One is that what parents don't know is often the thing that winds up biting them. And many parents are not aware that their children might qualify for really valuable and important supports and services in their schools. And what we find is that that affects the quality of the agreements that they wind up reaching and the conversations that they're having in the divorce process. For example, they may not realize that a whole lot of supports and services that they may be arguing about in terms of who has to pay and the logistics of getting children to appointments, they may not realize that the child could be getting those services for free in school, and the awareness of that can create options and opportunities that might not have been possible if nobody had brought up that issue. So services, valuable services and convenience of having them provided in school. Another area of intersection that I see is that children who receive appropriate special education services from a young age on and they're getting the right services and supports have a much better chance of gaining independence or being less dependent on their parents in the future. And that can have profound effects on the co-parenting relationships that the divorcing couple may have going forward. If the child is more independent and is able to, say, get a job after graduation or maybe go to college, that will change the obligations and responsibilities that the parents have. And so there's a real opportunity, when they're getting divorced or restructuring, to make sure that the children are getting the services that they need. Adam Dayan: Those are some great points, and I think the second point that you mentioned is especially interesting. We talk about gaining skills and becoming more independent, but not everybody thinks about how it could affect co-parenting and the idea that the more independent the child becomes, the less of a burden or the less of responsibility, potentially, on the parents who are co-parenting. Josh Kershenbaum: Absolutely. Andrea Vacca: Yeah. And on the first point regarding services that the parents are getting, I'm seen more and more, because I work in more of a non-adversarial processes, that parents are thinking, "Should we leave the city? Should we move to a suburban school district together?" Because it's so much more expensive to get the services here in New York and some of the suburban districts, they're included. And now when you have two homes to support, it might be better for everybody just to move, so that comes up a lot more now. They explore the idea as to whether that will happen or they'll talk about, maybe not doing it now, but they'll revisit the issue in a year or two and see how things are going, which I think is great that these parents who are divorcing are willing to relocate together for the best interest of their children and the financial issues that are coming up. Josh Kershenbaum: Yeah, Andrea makes a great point. One of the other big intersections between special education law and family restructuring is that the special education law will affect the placement of the child, where the child is going to school. It can literally affect where they're attending school and who's paying for it. That obviously has profound implications on decisions that the parents are going to make about where they are going to live and about whether, and to what extent, they will be paying for funding the child's education, which can be a major source of conflict in a divorce process. So yeah, the placement questions and decisions are hugely important. Adam Dayan: And you and I both know, Josh, that school districts can handle or approach the special education legal process very differently. So residing in New York City and dealing with the Department of Education, for example, may be very different than dealing with a school district in upstate New York or a school district in Pennsylvania or some other place. And so, where you live, where you might be relocating to really has significant implications for what the special ed legal process is going to look like. Andrea Vacca: And it's also the services that they're getting, the occupational therapy, the physical therapy, the speech therapy, it might not all be included, sometimes, in the schools here. This is what I hear from clients, that they're schlepping all over the city, bringing their kids to all these different locations. And sometimes it's covered, but they have to pay out of pocket first, but they're moving everywhere around the city to get the services instead of in the school district, which is, outside of New York, it's more common. Josh Kershenbaum: Yeah. Another great point. I mean, I know Adam was shaking his head on this because anybody who has been a special education attorney or advocate really sees, right? You see these intersections in a way that others don't and you just raised the issue of related services and just knowing that there is a such thing as related services and what that includes. You listed a few really critical ones, physical therapy, speech therapy, occupational therapy. Transportation, however, is a related service and anything that's going to potentially affect transportation is something that affects logistics and anything that affects logistics for literally getting the child from point A to point B, will have a profound impact on the co-parenting plan that the family is going to be discussing and negotiating. When you have a child with special needs and you're going through a divorce, the logistics are often the most difficult to literally navigate during this process. Having somebody on the team who's aware that there may be free transportation that should be available to the child can be a huge opportunity. Adam Dayan: We're going to talk more about co-parenting plans in a little bit. I'm sure we'll discuss logistics some more. Before we do that, I want to set a framework. For this conversation, let's focus on three areas pertaining to special needs and the context of family law. Number one, financial issues, number two, parenting issues, and number three, negotiating with one's partner to find opportunities for collaboration. So let's start with financial issues. What are some of the common financial issues that come up for families going through a separation while raising a special needs child? Andrea Vacca: The first thing that comes up based on the conversation we were just having about all the services, you need a parent, usually, or a very devoted caretaker, to be moving the child from place to place, to the different services, to making sure that they're home. Maybe they need care longer than other children, they need someone to look over them. So it limits one parent's ability to work a lot of the time. They can't get back into the workforce, or as fully as other parents can, if they've been out because they're needed. And if one parent is working and primarily supporting the family, they don't have the time and the flexibility to become a caretaker. So I see that a lot. Oftentimes, it is the woman, the mother, who is staying home, or the parent, if it's a same sex family, then at least there's one parent who's staying home with the child and their employment options are very limited after divorce because of the child's needs. So that's a big financial issue I see. Josh Kershenbaum: Absolutely. And financial issues is a broad category that can include things like support. So a financial issue that people deal with in their divorce is whether one parent is going to pay support to the other, child support or alimony or spousal support. And what you just mentioned, Andrea, is critical because the need for support, how much money is needed for support, will depend, in part, on the ability of each parent to earn income. And so, like you said, if one parent's income is diminished or limited based on the care that they're going to need to provide to their child, it will mean requiring or needing more support. Another area is, we mentioned it a little bit before, is literally paying for services. So a financial issue that comes up is, how are they going to divide or allocate the responsibilities, the care costs that are not covered by insurance? And that brings up the related issue of insurance, which means that a financial issue that comes up here is, what insurance is the child going to have and is the child eligible for public benefits through Medicaid? In some states, that's going to depend on the income of the parents, and in some states like Pennsylvania, it's not. So having people on the team who have some awareness of what sources of support may be available, in addition to the parents themselves, is quite important. Adam Dayan: And I think you've said this, that parents may not know they're entitled to funding for services, parents may not know they're entitled to funding for a private evaluation, for example. And if they're not in the know about their right to funding for these things, it's going to come out of their own pockets and that's going to affect the child support and other financial obligations. Correct? Josh Kershenbaum: Correct. And so, one of the big things that we do as, and this is something Andrea and I have in common, we both work as mediators and we both work helping parents as a neutral. And one of the things that we do as a neutral sometimes is connect people or introduce parents to other professionals who can help them, for example, advocate for services. So we would not be their special education attorney or advocate, but we would give them Adam's phone number and say, "Hey, you might want to speak with somebody about this because this could make a huge impact on the bottom line. You folks are trying to negotiate when there's another source of support that could be in both of your interests to be advocating together to make sure that they're providing the funding that you need." I just wanted to touch upon something that briefly came up, which is this notion of public benefits. A financial concern that parents have, that they don't necessarily realize it, is that when they have a child with disabilities who may be eligible now or in the future, for public benefits such as Medicaid or SSI, it's very important that they structure their divorce and they structure their finances in a way that keeps their children eligible for those services. And that can often mean needing to consult with somebody about the creation of, for example, a special needs trust, which, through proper counsel and advice from an estate planning attorney, they could create an account, basically, that they could put money in for their child, for the benefit of the child, and that money would not count towards their eligibility for medical assistance. So financial planning is quite important, whether you do that through working with a financial neutral or if you're in the collaborative process, perhaps you have a financial neutral on your team, you want somebody who can help you structure things so that you don't disqualify your child from valuable benefits. Andrea Vacca: Absolutely. And then on the other side of the divorce, what comes up financially is, how long will you be supporting this child? I mean, child support in New York, they did expand the law that special needs children are entitled to child support up to the age of 26 instead of 21. So that's new and that's good, but many parents are thinking way beyond that. They may be supporting this child for the rest of their life and you have to be on the same page about that. And so, a non adversarial process is a much better chance that you'll be able to work that out. And that's something that might not be enforceable, but it's something in your agreement and you have to have a conversation about it and really think ahead. Adam Dayan: Okay. And we're going to talk a little bit more about the non adversarial processes in a little bit. What are the implications of having or not having an individualized education program, also known as an IEP, where divorce is concerned? And for our listeners who aren't familiar with the IEP, that's the legal document that says what programs or services your child with special needs is entitled to. Josh Kershenbaum: Well, this goes back to what we were talking about a bit earlier, which is eligibility for services and protections under ITEA to begin with. Any student who is eligible for services and protections under this law is going to have an IEP. So the IEP is the document, it's almost like a contract between the school district and the parents, that shows what services are going to be provided, what goals and objectives they're going to try to help the child meet and describe the location and the services and the placement. So really, the IEP reflects the services and the placement that the child is going to have. It's really an important document for a number of reasons. I mean, you will have one if you're found eligible under IDEA. The IEP itself is also a very valuable source of information.It's supposed to include in it the results of the evaluation reports and the reevaluations and a whole lot of information about the child's needs and progress in school, which can be very informative and helpful in conversations that take place during the divorce process. And you can't see us all shaking our heads here, but we're all shaking our heads because we know that one of the most common challenges that parents face when they're going through divorce and they have a child with special needs is that the parents don't always agree on what those needs are or even whether the child has special needs or not. This is probably the most common challenge that parents face in this situation. The IEP itself, or the school district's evaluation process, can be a valuable source of information about the child's needs. So when the parents are not necessarily disagreeing, part of that could be because they don't have enough information. They need more information. Knowing that there's the opportunity to request a reevaluation or perhaps even obtain an independent evaluation can be a means of providing free additional information that would be useful to both parents to help them work through conflicts regarding the child's needs. Andrea Vacca: Right. And when you don't have the IEP, what I see with parents, it does cause a lot of conflict between the parents. One parent inevitably sees issues and has more concerns than the other parent, just in my experience, they're rarely on the same page for the kind of borderline situations, and then they have to pay out of pocket. I don't know, the last time I heard a neuropsych valve is like $6,000 and when you're going through a divorce, for some families, that's a lot of money, and to come up with that. And so there'll be fights about that, "Should we pay for it?" Speaker 1: If you like what you are hearing, please let us know by subscribing to the Curious Incident Podcast and letting other special needs parents know about it too. If you have thoughts, questions, comments or would like to suggest ideas for a future episode, we'd love to hear it. So email your feedback to podcast@dayanlawfirm.com. Adam Dayan: Josh, you mentioned special needs trust earlier and I want to just shift our attention back to that. Can you guys speak a little bit more about where special needs trusts and estate planning factor into this conversation? What role do they play in the separation process? Josh Kershenbaum: There's a couple of ways. One is that when people are getting divorced or they're separating, it's a time when they naturally are going to need to revisit, or sometimes visit for the first time, their wills and their other estate planning documents. They're preparing for the future so they're going to be asking questions about who's going to be a guardian for their child if they die and the other parent dies and how money is going to be inherited. So this is a natural time when people are either, again, revisiting or visiting these big questions. And that includes, how are we going to prepare for and protect the financial needs of our children? And when you have a child with a disability, one of the main things you need to protect is their eligibility for public benefits. Again, you're not just planning for today. There is, naturally, an opportunity here and an need to think about the future. So if you structured your divorce in a way that would make your child ineligible for public benefits, perhaps not today, but down the road, that would be bad. So you want to know about these trusts so that you can get them set up the right way. The second thing is that because these trusts are managed by a trustee, which is usually a third person, and sometimes it's possible for one of the parents to be the trustee, but it's an opportunity to create a vehicle in which you can put money aside for your child without giving it directly to your soon to be ex-spouse. And that can open up opportunities for structuring financial support arrangements that help the child and protect the child, but where there's resistance to actually putting that money into the pocket of the other ex-spouse. So it creates some interesting opportunities there that sometimes people would be willing to do if their interest was protecting their kid, but they had concerns about giving the money directly to their ex. Andrea Vacca: I wish more people thought about this during the divorce process. In my experience, they don't. They put off the estate planning until afterwards. As much as I encourage clients to think this through, to talk to their trust and estate's attorney during the process, many of them just don't. They don't have the bandwidth for it. So I think my question is, what mistakes have you seen when people have... You mentioned, Josh, you said they have terms in their agreement that ends up hurting their child in the end. So I'd like to know, what have you seen that that does that so I can warn my clients more and maybe they'll listen in a different way? Josh Kershenbaum: From a financial standpoint, I think a couple pop into this conversation right now. You make your child your beneficiary on your life insurance policy directly. Now the child stands to inherit $500,000, which is going to disqualify them from every single public benefit that they could possibly be eligible for. Because again, it would be their asset. This is not even the parent's asset at that point. So that's just one simple example. Going forth and providing money that's directly for the benefit of the child, but it's not in a special needs trust, could also create problems. You have to make sure you're structuring the support payments the right way and consulting with an attorney about that is very important. Andrea Vacca: What about a 529 account? Could that be used against the child if there's a 529 education account with the child's name on it? I'm wondering. Josh Kershenbaum: That's a great question. As you know, as mediators, we can't get into the sort of legal questions of whether something is or isn't going to count for tax purposes or things like that. Andrea Vacca: Right. Josh Kershenbaum: But it's the perfect kind of question where we can say to people, "The next time you're speaking with your attorney or the next time you're speaking with your accountant, here's a question that you may wish to ask." And again, just helping people know what questions to ask is very valuable. Most parents say, "I don't know what I don't know, and if you just can give me the questions to ask, at least I'll be able to get the advice on that." To speak to your point about what mistakes do people make, I think most of those mistakes simply come from not knowing what questions to ask or thinking too shortsighted. People are so desperate to get through this process and they're really thinking about now. It's very painful and difficult to be thinking a lot about the future. And you're right, it requires a degree of bandwidth that a lot of people don't have. Adam Dayan: We're going to move on to parenting issues in a moment, but before we do, are there any other long-term financial planning issues that come up? Josh Kershenbaum: One issue is college planning. Andrea Vacca: Yes. With college planning, oftentimes, these parents don't know if their children will go to college. So we can't just talk, in the agreement, about how to save for college or how college will be paid for. We do need to say trade schools, other educational programs, residential work programs, whatever... We have to talk about other ways that these children may end up being educated in the future because if you just limit it to college, that's not enforceable if they go to a trade school, perhaps. So that's one thing that we're doing a lot differently lately, is making sure we're talking about that. And then I don't know, I'm going to find out if those 529 accounts are going to be something that could hurt a child later, knowing that there's money earmarked for education. I don't know, but I'm going to ask. So what would you say, Josh? Josh Kershenbaum: Yeah, I mean the other side of the college coin, I think you're absolutely right. I think some people, there is a question as to whether the child's going to go to college or not, but I think for other people, they may not have ever considered the possibility that their child could go to college, and that's something that's changing a lot, and I think not a lot of parents necessarily realize that it's becoming more and more possible for more and more young people to attend college with disabilities, and the range of disabilities that college students can have and still have a productive college life has grown tremendously, even since I started doing this work. So even raising the possibility that their child might attend college, it could be the first time somebody's actually even considering that. And again, that kind of awareness that we can bring to the conversation could expand opportunities and possibilities for families that they just wouldn't have had otherwise. Adam Dayan: Okay. Now that we've covered the financial side, let's talk about parenting. What are some of the common parenting issues that come up in this context? Andrea Vacca: So much. Oh my God, there's so much that comes up here. First of all, how will you be co-parenting? What will be the schedule? What is right for this child? Do they handle transitions well with the services that they're getting? Is it better in one neighborhood where one parent's living better for them because of transportation issues? How many overnights are right for this child? So there's a lot of co-parenting, scheduling issues that come up. Who will get them... You raised this earlier, Adam, who will get them to all these services and move them around town? So that's one thing that... You have to do that with every child, but I think with special needs children, it's especially hard because someone has to be with them all the time, many of the children that I'm thinking about. Adam Dayan: And the transitions point is an interesting one. I think about that a lot. Some students with special needs have difficulty transitioning from one environment to another or one therapist to another, whatever the case may be. How exactly does that play into co-parenting or separation agreements? Andrea Vacca: Well, it depends on the child and what the child's needs are. So if you have a child that will fight and have tantrums and not be able to move from home to home, you can't force it. That has to come up early in the discussion because you don't want one parent to be seen as making the child follow a schedule that can't be followed. So I always like to see parents starting to try out different schedules before they commit to it on paper. Let's see what's working because you just can't make assumptions, and we need to revisit them regularly because this year might be one thing, next year might be very different. Maybe things have gotten better or worse, you just don't know. So I'm always encouraging parents to revisit their parenting schedule, take a look at it, with special needs children, all the time. Josh Kershenbaum: Yeah, I think that is such a great point. I think what Andrea is really pointing out is that all families need a process that's going to be right for their kids, most people come in saying that's their top priority, but when you have a child who has a disability that, for example, affects their ability to transition from home to home or to have disruptions to their schedule or something like that, now you have to start getting creative because now you have to stop and think, "What are our options and possibilities here?" Because you may have one parent that just says, "Listen, there's no way that Johnny can go from home to home. He's going to have to live in one of our homes and that's going to be mine." And it may be very tempting, in certain situations, to say, "Well, that seems to make sense."But what Andrea pointed out is, there are other possibilities. There's other options. We could have a trial period, we could do it gradually, we could explore nesting, nesting being where the child stays in one home and the parents alternate in that home. You need people on the team who can help the parents think very creatively because that's what they had to do when they were married. They had to think creatively about how they were going to structure their lives in a way that was going to meet the needs of a child that has complex needs. And now you're going to have to try to figure out how to do that in two homes. So the key is to be bringing curiosity, to be bringing creativity and open-mindedness to the possibility that there may be some outside the box solution to this, that, until we have that conversation, we may not know. And Andrea just listed a couple of great examples of that. There are so many ways that co-parenting is affected by having a child with disabilities. We could spend an entire episode just on that.

You mentioned the transitions. There's also the issue of decision making. Every family that's going through divorce and they have kids, they're going to have a conversation about who's going to get to make the decisions, the medical decisions, the educational decisions, the legal decisions. That is going to be a huge issue when you have a child with disabilities. So they're going to have to explore how they're going to allocate that. Is one person going to get the final word? Are they going to have to inform each other about this? Are they going to have conversations? How are they planning on doing that? And that's also very important in the special education context because who's going to go to IEP meetings, right? Who's going to sign? Who's going to be the one that's going to approve services? Do they both have to? Are they both going to receive notices? Are they both going to have access to the records? I will tell you, and I know Adam knows this, but school districts tear their hairs out in these cases where the child has an IEP and the parents are divorced and the parents are disagreeing with each other at the IEP meeting or with the school district. It's a very, very complicated and unstable situation for the child when the parents are on different pages about their educational services. And to the extent that we can get alignment or help them talk with one voice when dealing with the school district, it does a great service to the child. Andrea Vacca: I agree with you Josh. And that's why in the collaborative divorce process, I know we're going to talk more about process later, but when we have a child specialist who's the voice of the child on the team or the family, we call it the family specialist here in New York, who's more helping with the parenting schedule, that can talk to the child's providers and teachers and make sure that they have all the information they need to help the couple, the parents resolve issues and think through how they will handle different things that could cause conflict later. So being in an IEP meeting and fighting in front of the teachers and administrators is a terrible way to help your child. I mean, it's just the worst. You don't want that to happen. So what I see also, sometimes, I'll have a parent... Okay, I'm going to be stereotypical now. Okay, the higher earning, heterosexual couple, higher earning father wants 50 50 parenting, he wants half the time with the child, but then doesn't show up for the IEP, doesn't show up for meetings with providers because he's working so he forgot or whatever happened. That's not a way to build trust with the other parent that you actually can handle being a full on co-parent when you don't show up during the divorce process. So I just want parents to know how serious this is and to take it seriously and show up and be the parent you ultimately want to be because maybe during the marriage it's okay if just one parent went, but now you really both have to be there. Speaker 1: If you like what you are hearing, please let us know by subscribing to our podcast and letting others know about it too. If you have thoughts, questions, comments, or would like to suggest ideas for a future episode, we'd love to hear it. So email your feedback to podcast@dayanlawfirm.com. Adam Dayan: I want to hone in on this concept of alignment that you mentioned. And I know in our off the record conversations, we talked about it as breaking the tie where parents have differences of opinion. Talk a little bit about how that gets resolved. How, through the co-parenting and negotiation process, is alignment achieved? And if they are showing up at IEP meetings, for example, with opposite views or trying to make a medical decision and they disagree, how does that get resolved? Andrea Vacca: If the parents don't agree if a child needs OT, but the physical therapist says, "I can only do so much, your child doesn't need OT," And this is just an example, you'll go with the physical therapist advice. So one parent agrees with the physical therapist, the other one doesn't. That's just a small example. Or a doctor says, "We need to do surgery," Or, "We need to do something more invasive or try a different medication." You'll go with the doctor's opinion. They will agree in advance that if we can agree, we'll go with the provider. That's one way to handle it. Another way is for the parents to choose a parenting coordinator and to choose someone who will be the person that can break that tie and by talking to the different professionals and try to help the parents come to an agreement, but if they can't, they will make the decision and they can give a parenting coordinator decision making ability or they can say, "They're not going to have decision making ability, but we will try and work with the parenting coordinator to help us come to an agreement before we go to court and have to ask a judge to do it for us," Because that's ultimately what will happen. A judge who knows nothing about your family, doesn't know your child, has dozens of other cases on their docket that day, is going to be the person to make a decision for you if you can't do it for you. So just finding different ways that the parents can set up, "If this happens, this is what we'll do and if this doesn't work, then that'll be the next thing we try." That's how we do it, generally. Josh Kershenbaum: Yeah, I think this fits in very nicely with just good mediation generally, which is really what we're talking about here. You're trying to help parents understand what their actual options and alternatives are, including helping them understand, or to at least consider, what's going to happen if you guys can't work this out yourself. And they will have to come to an understanding at some point that the price that they'll have to pay for not being able to work this out themselves is that somebody else is going to decide it for them. And if they're okay with that, then okay, but if they want to maintain control over the outcome and not turn something that important over to a judge, then they're going to have to come up with some kind of way forward, and that could sometimes mean, like you said, agreeing on who the tiebreaker's going to be. And in lieu of that, sometimes it's trying out something, saying, "We may not be able to resolve this a hundred percent, but we can try something for a limited amount of time and then come back together and see how it went." We could also explore, where is this disagreement coming from? Is it coming from a difference in information? Does one parent believe that the child needs something because they have some information that the other parent does not have? Can we balance or gain alignment by sharing information? Is it coming from a difference in values? That's a different kind of a conflict and it comes up a lot. Many people, particularly when it comes to issues such as disability, have very different beliefs and values regarding what they are and what the child may need. At least we need to understand where that's coming from. And again, if it's a question of values, do you want to be the ones making this decision or do you want somebody else to make that decision for you? Adam Dayan: So I know that there's a couple of situations that we see in this context. One is where one of the parents is more aware or accepting of the child's disability, whereas the other might be in denial or seeing it differently, and another situation is where one parent historically has been more knowledgeable about this student's or child's needs than the other parent. And so, once the parents have decided to separate, how do those situations usually play out? Josh Kershenbaum: It's very common that in a two-parent household, one of the parents is just more involved or aware and knowledgeable about the child's care and needs. And when they're all living under the same roof, you can get by with that pretty well, but now you're talking about setting up two different households where the child's going to be living and both parents are going to be involved in the child's care. And the parent that's historically been on top of everything is going to be quite nervous and skeptical of the idea that the other parent, who has had very little experience with this, is somehow going to be able to now care for the child. And that can create a very normal and natural fear that can make compromise and negotiation and conversation very challenging. And it puts the other parent at somewhat of a disadvantage in this. Here's the person who's saying, "I want to be fully parenting my child and I want my child living with me half the time..." Or whatever it is, and they can't honestly say that they've had a lot of experience meeting the child's needs or their perceptions or their opinions about the child's needs are viewed as less credible than the other parent. And so, in a way, to break out of this sort of binary all or nothing kind of paradigm, which I think a lot of people come into all negotiations with, we explore possibilities and options that would enable the other parent to gain practice, to gain experience. Maybe you don't start off by having the child going back and forth equally between the two homes, maybe it's gradual, maybe one parent has an opportunity to learn a period of learning from the other. So we zoom out and we try to understand, what's the underlying interest here? What's the concern and what are the possibilities and options that might actually be able to create balance? Andrea Vacca: You know, the idea of learning from each other. If we can get parents to appreciate what the other has brought to the relationship, even though it's ending, maybe one person was more financially savvy or helped manage the finances and the other one managed the children and dealt with those needs and they now have to do these things on their own after the separation. If we can bring that spirit of learning from each other to the conversation, to the mediation, what can you each provide to the other so that they can be the best parent they can be and help support their family individually, independently? I mean, that's a beautiful thing. So if we can keep the conflict down or help lessen the conflict during these negotiations, they can walk away, hopefully, in that spirit of trying to help each other get through this. But sometimes it means baby steps and not jumping in all the way. It could be really dangerous, actually, to do it that way because they're just not ready, emotionally or logistically. Josh Kershenbaum: Yeah, you don't want to create a self-fulfilling prophecy, but one parent says the other parent has no idea how to care for this child and he's right. And then you go ahead and you divide up the child's time half and half between the other and then there's a problem at the other house, and then it's an 'I told you so' moment, and you don't want that. You're right. We're really trying to help people set themselves up for success. And we have something that they don't have, which is, we have experience seeing other people through this process. Most people have never been through this before and for many people, this is the very first time in their lives that they are becoming aware of their finances of their child's needs because up to this point, they've never really had to do that before. It's kind of ironic because we think about divorce sometimes as being the ending of a family. And in fact, it's oftentimes the very first time that people have intentionally structured their families. Most people don't structure their families with a lot of intention. It just sort of happens. You have kids and you sort of figure it out as you go along, but divorce is sometimes that first moment where you sit down and you're actually both looking at all the numbers and you're looking at the logistics and you're looking at everything up close and in detail. That's an overwhelming thing for anybody to do at any time, and particularly if you layer in the emotional aspects of divorce. We have to have a lot of compassion for people that are going through this. It's very hard. And again, having people that can help you step back and go through it methodically can be a great support. Adam Dayan: Are there circumstances where something that might be appropriate for a special needs child while they're with one parent is not appropriate for that same child while they're with the other parent? Josh Kershenbaum: Here's an example. I once was working with a family who had a child who has autism and the child was prone to eloping, to running off. And that was a very different situation in one home where out the door was a big yard that was fenced in and the other home, out the door was into the street. And so, knowing that the physical setup of one home may be different from the other, and depending on what the child's needs are, it may not be appropriate for the child to be doing one thing in one home as opposed to the other because it might not be safe. But again, we have to really look closely and that's why we ask a lot of questions. We want to have an understanding about what the child's needs are and we want to have an understanding of what the physical spaces are going to look like. Andrea Vacca: Yeah. And when you first asked the question, I was trying to think of a situation, but with Josh's example, I had a client who, he was an early riser, as was his child, who had autism as well, and the mom was not. She was dealing with her own issues, medical, psychological issues and wouldn't wake up in the morning, and this child needed care in the morning. And mom had been the primary caretaker, but I don't know how she had done it because she didn't wake up. So we really had to find a schedule where the child wasn't going be alone in her care in the mornings. Josh Kershenbaum: Yeah. Andrea Vacca: Because he couldn't take care of himself. Josh Kershenbaum: It brings up that really important issue, which is the, I call it the tyranny of equality, that kind of looms in a lot of divorces, is people come in with this idea that things have to be equal and that equal is fair. And anybody who's worked with families that have kids with disabilities understands that equal is not necessarily fair, it's not necessarily even safe and that what might be safe in one situation, might be very unsafe in another. And then instead of focusing on whether things are the same, we need to look to see what the needs of the child are and to see whether, whatever the scenario is, meets those needs. Adam Dayan: This is a great segue. What happens when one or both parents may have special needs? Andrea Vacca: It's very often, very often the case. It's hard for a parent to accept. Maybe they're on certain medication and they've been taking anti-anxiety medication or antidepressants or something like that, but sometimes it's much deeper, but they haven't been officially diagnosed with perhaps a personality disorder or something that... All the symptoms are there, all the behaviors are there, but getting them to get the diagnosis, it's not going to happen. So how do you deal with that when you see that there are issues? Like this mom I was just talking about who wouldn't wake up, couldn't get her kid to school, but her therapist said everything was fine, she's on medication. There's only so much you can do, so there's a lot of workarounds and trying to find ways that she feels that it's an agreement that... We all know that the child will be safe in her care, that her ego is not being affected and that she's still getting the care she needs to the extent that she'll accept it. It's a balancing act, I guess that's my answer. It's hard. Josh Kershenbaum: It's a very important question and it's a very hard question for a few reasons. First of all, what we call special needs is a rather large tent, and now that, in and of itself, is kind of an eye-opening thing. I think when people hear the term, they may have a preset idea of what that includes and what that doesn't, but when you do this work a lot, you learn to understand that special needs can mean a lot of things. So when I hear, "What happens when one of the parents has special needs?" My first question is, well, what are we actually talking about here? What kind of needs do we mean? We could have a situation where one parent is deaf and the other parent isn't. We could have a situation where one parent has severe depression and the other one does not. You can have an issue where one parent is autistic and the other one is not, diagnosed or undiagnosed. One thing's for sure, it is more common for one or both of the parents to have a disability of some sort if at least one child has a disability. And that's not shocking because many disabilities are genetic. So we as mediators and as collaborative professionals and as special education attorneys, we know that when we do this work, it is more likely that at least one of the parents that's in the conversation may have a special need of their own. So the first thing is to make sure that in our practices, we are aware of the needs of the parents in addition to the needs of the child because the needs of the parents are going to be what's at the heart of this whole conversation and it's going to affect the care that the kids get. It can present many challenges if the nature of the disability is one that affects communication and affects the ability to read nonverbal cues, it can lead to conversation and communication challenges. There's all kinds of ways it can manifest, but we have to be aware of that and deal with it. Speaker 1: If you like what you are hearing, please let us know by subscribing to the Curious Incident Podcast and letting other special needs parents know about it too. If you have thoughts, questions, comments or would like to suggest ideas for a future episode, we'd love to hear it. So email your feedback to podcast@dayanlawfirm.com. Adam Dayan: All right. Developing co-parenting plans, how does it work? Andrea Vacca: Generally, it starts with the conversation. What are you doing now? How do you parent your children now? Where will you be living? We talk about logistics. Where are you living now? Where will you be living? How close will you be? Where are the children going to school? Are they going to the same school? Just get the lay of the land and then talk about what's important to each of them, to each parent, to time, quality of time, quantity of time, special events, special family holidays. Like, how have you celebrated in the past? What are your family traditions? We go very deep, very narrow, but very deep as to all the different issues that are going to be talked about before we could put together a whole plan. It's not just day to day, week to week, it's the weekend, it's the holidays, it's the school breaks, and sometimes it's, like I said, what are the traditions? Are you always going to Michigan for the summers or are you always going to Colorado for the winter? Whatever it was, where are your extended family? So there's so many issues that go into it. Then when you have a child with special needs, then there's those issues of transition times and more logistics. Josh Kershenbaum: Andrea, you're quite right. There's a lot of details. Or a good co-parenting plan, I think, starts with a conversation about what's the goal here? Describe the relationship that you would like to have with each other and with your kids and for your kids to have with you. Sometimes we ask people to fast forward into the future, 20 years from now when you're at your child's wedding, what do you want that to look like? What do you want that to be like? What's the story that you want your kids telling about your divorce? Do you want your children to have... How do you want them to remember this? And that can be very helpful in guiding and grounding people in those many difficult conversations and details that they're going to have to work through. Those decisions won't get made in a vacuum. They will go back to their statements, their visions, their mission statements about their divorce. I say to parents sometimes, I ask them a question and I say, "Do you want to have a child centered divorce or do you want your kids to have a divorce centered childhood?" Because how you do this, how you have these conversations is going to answer that question. And I have yet to hear anybody say that they want their children to have a divorce centered childhood because many people who are getting divorced are children of divorce themselves and they know what that was like. And so, then the question is, "Okay, how are we going to do that?" And they build a mission statement. They describe their vision, and we use that to ground people in those very detailed conversations to work through the logistics. Andrea Vacca: That's a great way to start. Adam Dayan: Now we've covered the financial side and parenting issues, let's focus on the process of partners negotiating with each other and finding opportunities for collaboration. What are the different ways that couples can separate? Andrea Vacca: There are three main ways that people can separate. They can use the mediation process, which is where they have a mediator who sits down with the couple and helps them come to an agreement on all the different issues that have to be discussed, from finances to children and everything in between, until they come to an agreement, and that's a separation agreement. For couples who aren't able to sit in a room and advocate well for themselves, maybe there's some type of imbalance between them and how they communicate or their financial knowledge or their knowledge around the children or whatever it might be, some imbalance that's so out of whack that mediation won't be a good fit for them, then the collaborative process could be a great fit for that couple. And then the collaborative process is more of a team approach. So each client has their own attorney who's collaboratively trained, and then there's a financial professional and a mental health professional on the team. So we're dealing with the financial issues, the emotional issues and the legal issues all in one. Adam Dayan: And if you could just clarify, at the mediation, are lawyers present?

Andrea Vacca: In New York, in general, no. In other states, it's very common for the lawyers to be in the room. In New York, generally, the couple's in the room with the mediator and they have consulting attorneys that they're consulting with on the side who are hopefully mediation friendly lawyers and not litigators, giving advice to how to mediate.

Mediation's a wonderful process if they can both advocate for themselves and it can work out really well and it will save, probably, money. If it's not the right process and you try to force a square peg into the round hole of mediation, it will waste money, it will waste time, it will waste goodwill, so you want to make sure it's the right process. Let the mediator tell you if they think it's going to be the right process for you. And then in the collaborative process, you don't need to advocate as much for yourself. Your attorneys by your side during all the negotiations, but we're not advocating in an adversarial way. We're being non-adversarial, we're agreeing not to litigate with this couple, we sign an agreement, everybody agrees, no one will ever go to court with this couple. We are committed to settling this out of court with this team approach. It's a wonderful approach. It does cost more money, but you get a lot more, you get a lot for your money because you have this whole team looking at the problem from all these different angles and making sure it's durable. You're coming to an agreement that will work in the long term because you've considered financial, emotional and legal issues around that one particular issue. Third is negotiate an agreement. Two attorneys kind of negotiate it out and if they can't settle, they go to court. They ask a judge to make the decision for you. Some attorneys just start in the court system right away and try to settle then. Some people try to settle it with the shadow of the court hanging over them, always thinking, "If we can't make an agreement, we'll just go to court." So that is that litigation process and where negotiation falls into that process can vary. The worst is coming to an agreement on the courthouse bench as your trial's about to be called. You know, just finally settling out of duress at that moment. We want it to be more of a conscious, thoughtful process of negotiation, and that's why Josh and I mediate and that's why... And you've worked in the collaborative process and I work in the collaborative process. Josh Kershenbaum: So what I'm hoping people are hearing here is that there are different paths for getting divorced, and there's probably others we could think of, but what's fundamentally important is, you have to decide at a pretty early stage, do you want to go down a path where you're the ones making the decision or do you want to go down a path where someone else is making decisions for you? That's the fundamental question. What distinguishes litigation, or you can call it attorney driven negotiation, whatever you want to call it, from the other processes like mediation and collaborative, is that in mediation and collaborative, the parties, the parents, the spouses, are the ones that are empowered to make all the decisions and that everybody else there is helping to facilitate that process for those people. But it puts the focus and the emphasis, it puts you in the driver's seat, and that is extremely important, especially when you have a child with disabilities. Why? Because the more complex your situation is, the more unique it is, the more particular it is to one family, the more risky and, frankly, dangerous it is to let a complete stranger figure that out for you. So if at all possible, you're in much better hands if you're in your own hands. And if you're working with a good mediator or you're working with a good collaborative team, your family is going to be in your hands and you'll have the help and support you need to create agreements that make sense for your family. You're not spinning a wheel and hoping that the judge woke up on the right side of the bed for you. Andrea Vacca: Right. It's creative, it's private, it's, like I said, durable. This is something that can last because when you're making your own agreement, you can think ahead, "What if this happens? What if that happens?" A judge will never do that for you, cannot do that for you, they're dealing with the here and now, and the agreement they make will last into the future until you two don't agree and you can come back to court and fight it out then. But in our processes, we can really help the couple think ahead, what happens at certain ages or in certain events, and that makes all the difference to them being able to work things out longer. Adam Dayan: Talk a little bit more about the people who make up the team in collaborative law, the other experts or professionals who are involved. Andrea Vacca: Each parent has a collaboratively trained lawyer. So they're a family lawyer with mediation training and collaborative divorce training. So you each have an attorney with those qualifications. Then there's a financial professional who could either have the designation of a certified divorce financial analyst, so they're a certified financial professionals who then become the CDFA, or sometimes it's a CPA on the team, a certified public accountant. Everyone has been trained in collaborative divorce process. So sometimes the CPA's good if you have a lot of tax issues, if there's a business to be evaluated or something like that, we might not go for the CPA. Sometimes the CDFA is just fine. So that's the financial piece. And on the emotional piece, we'll have what we call a family specialist, a mental health professional, again, trained in mediation and collaborative, who will work with the couple on the parenting plan, on communication issues, on emotional issues. On high conflict cases, sometimes there's two of those people. Maybe each parent has their own mental health professional helping to advocate for them or helping them to advocate for themselves emotionally and communication wise, but oftentimes, it's a neutral person serving in that role. So that's the team generally. And then if we need something appraised like a home, we'll bring in the appraiser to get the home appraised or, I don't know, a trust and estate's attorney might come in to give advice on some special issues that come up, but then generally, that's the team. Josh Kershenbaum: There are other professionals that can participate in collaborative teams. That's the cool thing about collaborative process, is that it's very versatile. So Andrea, you mentioned that you might have other professionals like appraisers and things like that. There's two other types of professionals that I think you might want to consider having on your collaborative team if you have a child with special needs. One, Andrea mentioned before, a child specialist. There are collaboratively trained professionals whose job it is to bring the voice of the child to the collaborative process, to essentially give the child a metaphorical seat at the table. Children are almost never actually involved in the process directly, but the child specialist can interview the children and bring their voice into the conversation. Another type of professional that you could consider adding is a special needs consultant, which, I'm smiling because sort of invented this. I realized that, look, there's a need for this. If you have a collaborative divorce that involves a child with special needs, somebody on the team needs to be aware, sort of have that 50,000 foot view, of the different ways that special needs intersects with divorce. And so, I will do this. I will consult with collaborative teams. I'll be on a collaborative team where my job is to sort of ask the questions and bring up topics of conversation and ideas that they may wish to consider as part of their restructuring process so that at the end of it all, the parents have really had the benefit of considering the different ways and the different decisions that they're going to have to make and how that might affect their child, and so that they may explore options and possibilities that they hadn't thought of before, so that in the end, the agreement that they reach really fits their family's needs really well.

Adam Dayan: We've talked about a few different separation options. Can any of these options be used for couples who are not married and are in need of co-parenting? Josh Kershenbaum: Yes.

Andrea Vacca: All of them. Yes.

Josh Kershenbaum: Yeah, all of them. We as mediators work with folks with all kinds of conflicts. There's no need for the people to have actually been married. It's one of the reasons I call it family restructuring because it's not always divorce. If you've never been married, you're not getting divorced, but you may still have the need to have facilitated conversation to help you create a co-parenting plan if you're separating. Similarly, collaborative teams can work with families through any kind of challenges. Again, it's a team approach to supporting people through a facilitated conversation where they're the ones making the decisions, so it absolutely can be used in that way.

Andrea Vacca: Yeah. I'm working with a couple right now, in mediation, that are planning to have a baby together, don't want to be in a relationship. The baby's in utero. We don't know if they'll have any special needs, but they're planning to have this child together and they're working on a parenting plan and a support plan, and I'm helping them with that. So mediation's a great process for that.

Josh Kershenbaum: Mediators can help people negotiate prenuptial agreements.

Andrea Vacca: I do that all the time.

Josh Kershenbaum: Or cohabitation agreements or post-separation agreements. A mediator is a facilitator of a negotiation, a facilitator of a conversation, so we can get involved in all kinds of ways to support people.

Adam Dayan: I think we've talked about this, but are there any other reasons that out of court processes are superior for kids with special needs?

Josh Kershenbaum: Oh, yeah. There's lots of them, right?

Andrea Vacca: Yeah.

Josh Kershenbaum: I mean, we're all smiling here. Let's be realistic about one thing. In court processes that involve families are terrible for everybody. There are no scenarios in which it's a good thing or a happy thing to be in court with a family dispute of any sort. It's especially bad when your family has something that's out of the ordinary, because again, the court process is very generic. It's very one size fits all. It doesn't have the time, the patience, the interest, the ability to afford people individualized, bespoke solutions to their problems. So if you've got that kind of a challenge, you don't want to be anywhere near a court. The other thing is, it's very, very expensive to go through court because your only real access to the court system is through lawyers. You don't have to have a lawyer, but you're at a huge disadvantage if you don't and you're trying to navigate the legal system.

Lawyers are really expensive and lawyers that are not trained in dispute resolution or who don't necessarily have a financial incentive for you to resolve your case quickly are more or less the last people who you want to be in the hands of in a process that needs to be resolved efficiently and quickly. Parents who have kids with disabilities don't generally have a lot of extra money to throw around, they're often strapped as it is having to care for their children and to plan for their futures. An expensive, protracted, random, arbitrary process that takes you out of the driver's seat is the worst possible way to resolve the dispute. So if you think about it, what you really need is a process that keeps you in the driver's seat, that doesn't take any longer than is necessary, where everybody is supporting the cooperative resolution of the dispute so that it's efficient and that it can capture and take into consideration the unique needs of your family. That's the exact opposite of going to court, and it's exactly what mediation and the collaborative processes are set up to do.

Andrea Vacca: Having a child with special needs can be very, very stressful to a marriage and to a couple, it could be stressful for the other children in the family. So when this couple decides to end their marriage and transition and restructure, this could be a wonderful opportunity, actually, to see what hasn't been working, how do you want it to work? How would you like to co-parent? What strengths were you not bringing to the table because you didn't need to? Like, this is a great opportunity, but you have to have the right people around you to support you to keep the conflict low because if you let that get inflamed and you have attorneys trying to fan those fires and bring up issues of distrust, "You can't trust him to be with the children. He's never been with the children. We have to get sole custody for you."If you find yourself talking to a lawyer like that, run in the other direction.

You need to have a lawyer that's going to help you find the support that you need to co-parent as effectively as possible for the best interest of your children and for yourself. You are going to need a break. Children with special needs, they're hard to parent, and so this is a great opportunity. They will be with the other parent sometimes, you'll have some time to yourself. Let's look at how that could actually benefit you and how that can make you a better parent when you're with your child.

Adam Dayan: There's a concept known as discernment counseling for couples who are on the fence about separation. Can you say a few words about discernment counseling?

Josh Kershenbaum: Sure. Yeah. Discernment counseling is a process that was invented by a wonderful therapist named Bill Doherty, which was designed to give people who are facing the decision about whether to get divorced. And you may have one of the spouses who is, what we call, leaning in and wanting the marriage to continue, and you may have one spouse who's leaning out and who is more inclined towards the marriage ending. And they're needing a process to help them gain clarity and certainty about whether they're going to actually get divorced or whether they're going to get therapy or whether they're going to stick with the status quo. And so, Bill Doherty designed this very structured process that's limited to a few sessions where a skilled therapist, who's trained in this process, will help the spouses, in a relatively short period of time, gain clarity on which of those directions are they going to take. Are they going to actually get divorced? Are they going to work on the marriage and, or, are they going to leave things as the status quo?

Andrea Vacca: I refer people who come to see me sometimes to discernment therapists because they're not ready or their spouse isn't ready, and let's figure this out before you jump into a divorce process. Let's make sure you want to end the marriage and that you both get on the same side of whatever that side is. We're going to give it a chance or not because it could take a long time to try to divorce someone who is not ready to be divorced.

Josh Kershenbaum: Yeah. And I think the important things to know about discernment counseling is that first of all, it's a thing. It's an actual structured process, and you want somebody who's actually trained by Bill Doherty, in this process, to be doing it. Second, it's not therapy, it's not marriage therapy. So sometimes I think folks think that it is, and they may be like, "Well, we tried that and it didn't work," Or, "I don't want to go into therapy here." It's not therapy. It really is a process to help you gain clarity about what your options are and which direction you're going to go in and try, and it's very effective, Bill Doherty has done some studies to show how effective this process is, and while not everybody gains the clarity, many people do. And if you can at least both get on the same page about which direction you're going into, it sets you up for a much better outcome in the end.

Andrea Vacca: Yes.

Adam Dayan: Before we conclude, Andrea, where can our listeners get more information about you?

Andrea Vacca: Oh, the best place to find me is at my website, vaccalaw.com. I have an ebook there, and it's called Divorce Without Court, A More Peaceful Solution to Help You. It talks more about mediation and the collaborative process if you're interested in that. So lots of articles, videos, podcasts, blogs, all kinds of things on the website.

Josh Kershenbaum: My email address is J Kershenbaum, that's J K E R S H E N B A U M @gmail.com, and I'd love to hear from you.

Adam Dayan: Andrea and Josh, I'd like to thank you both for giving of your time generously to speak with our listeners today. It's been wonderful to sit down with you in this setting. You're doing great work for parents and you've provided a wealth of information for our listeners who might find themselves at the intersection of special needs and family law. Thank you so much.

Andrea Vacca: Thank you, Adam. Great.

Josh Kershenbaum: Thank you, Adam.

Speaker 1: Thanks for listening to Curious Incident, a podcast for special needs families. Don't forget to subscribe for a new episode every month. For more resources and helpful information, check out our website and blog at dayanlawfirm.com. This podcast provides general information which is not intended to and does not constitute legal advice. You should not rely on this information for any purpose. For legal counsel, you should consult with an attorney to discuss your specific circumstances. You're listening to this podcast does not create an attorney-client relationship between you and the Law Offices of Adam Dayan, PLLC. No attorney-client relationship is established unless a retainer agreement has been executed between the client and the Law Offices of Adam Dayan. This podcast may constitute attorney advertising. Prior results do not guarantee a similar outcome.

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