Texas Family Law Insiders Episode 130: Monica Peters and Issues in Divorce Cases involving Children with Special Needs

Summary

Texas Family Law Insiders Podcast Episode 130: Monica Peters on Divorce Cases Involving Children with Special Needs

Release Date: January 7, 2026
Host: Holly Draper
Guest: Monica Peters, Partner at Neil Peters Law

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Episode Overview

This episode of Texas Family Law Insiders dives into the unique and nuanced challenges faced during divorce and custody cases involving children with special needs. Host Holly Draper welcomes Monica Peters, a highly experienced family lawyer and the parent of a special needs child, to discuss practical, legal, and emotional considerations for attorneys and families navigating these complex cases.

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Key Discussion Points & Insights

1. Why Divorce Is Different for Families with Special Needs Children

• Families are different from the outset:
  Monica shares from personal experience, emphasizing how families with special needs children face distinct lifestyle challenges that fundamentally alter the approach to divorce and custody.

  "I think the first thing you have to understand is that families that have a child with special needs are just different from the beginning. So that's going to make a divorce or a separation different as well."
  — Monica Peters [03:12]

• Complex care needs and logistics:
  Children with significant medical, intellectual, or physical needs may have therapy and medical appointments multiple times a week, require specialized equipment, and need caregivers with medical training—making standard custody schedules and parenting plans unworkable.

  • Example: Monica’s own daughter requires a $14,000 specialized bed, is nonverbal, and uses a communication device.

  "You can't just go out and buy it because her special bed is like a $14,000 bed."
  — Monica Peters [05:40]

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2. Crafting Custody and Possession Schedules

• Standard schedules rarely fit:
  The intricacies of a child’s care regimen, therapy sessions, and equipment needs necessitate creative, highly individualized solutions.

  "The cookie cutter possession schedule is not necessarily going to work for those families."
  — Monica Peters [06:29]

• Assessing each parent's role and ability:
  Attorneys must dig deep into:

  • Historical caregiving roles
  • Which parent handles medical care and appointments
  • Parents' willingness and ability to learn complex medical routines

• Equipment and environment challenges:

  • Duplicating expensive or cumbersome medical equipment across two homes is often impossible.
  • Transporting certain items (special beds, chairs) may not be feasible.

• When nesting may work:
  Although rare in typical cases, "nesting" (child stays in one home, parents rotate) may be the only workable solution for children whose needs make transitions difficult.

  "I have done it more and more as I have done more special needs cases, because sometimes that's the only real solution."
  — Monica Peters [10:46]

• Hybrid solutions:
  A mix, where the primary caregiver gets periodic breaks and the other parent temporarily moves in, can provide respite without logistical upheaval.

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3. Parenting Plans & Information-Sharing

• Communication is critical:
  Use co-parenting apps (OurFamilyWizard, AppClose) for sharing medical updates, appointments, and reimbursement tracking.

  "There is so much information that needs to be shared when you have a special needs child."
  — Monica Peters [12:34]

• Tailoring rights & duties:

  • Clearly define who can make which medical and educational decisions.
  • Avoid ambiguous language about “invasive” procedures—what’s routine for a special needs child may not be for others.
  • Explicit clauses for hospitalization, special programs, and therapies.

• No one-size-fits-all:
  Every family and every child’s needs are unique; detailed intake and thorough discussion with clients are indispensable.

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4. Managing Conservatorship & Decision-Making

• Sole managing conservatorship is more common:
  When one parent becomes overwhelmed or disengaged, the actively involved parent often must be empowered to make medical and educational decisions.

  "You will have one parent who checks out.... It's heartbreaking, but it's true."
  — Monica Peters [15:35]

• Exclusive rights with clear consultation/notification obligations:
  Even with joint managing, designate clear timelines for responses—e.g., 24 hours to agree to a medical appointment—or else allow the responsible parent to proceed.

  "If it is by joint agreement. I always write in a deadline... because you can't have a parent that's stuck waiting for somebody who's never going to respond."
  — Monica Peters [17:17]

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5. Determining Appropriate Child Support

• Guidelines often fall short:
  Too often, courts and lawyers default to guidelines meant for typical children—failing to account for vastly increased needs and reduced capacity of one parent to work.

  "A lot of times lawyers are just using the guideline support, and that is a mistake in my opinion...It's also incorrect."
  — Monica Peters [18:29]

• What should be considered:

  • Actual demonstrated monthly needs (including therapy, equipment, respite care)

  • How the child's disabilities restrict the primary caregiver's ability to earn income

  • Obligated parent’s ability to pay

  • Utilize financial information sheets specifically tailored to special needs cases.

• Process:

  1. Start with guidelines as a floor.
  2. Document all real-world financial needs.
  3. Argue for increased support if justified.

  "I want them to think through every little expense...and then if the average monthly demonstrated needs of the child exceed that of the guideline support, then we're going to look at each parent's ability to provide and get as much from the obligor as we can."
  — Monica Peters [21:53]

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6. Special Needs Trusts and Government Benefits

• Importance of special needs trusts for ongoing support:

  • Child support paid after age 18 directly to the parent may be considered “income” for the child, jeopardizing Medicaid/Social Security benefits.

  • Child support should be structured to be paid into a court-created special needs trust post-18.

    "You have to have it worded in such a way that once the child reaches the age of 18 years, that child support payment is now going to be paid into a special needs trust..."
    — Monica Peters [23:59]

• What if existing orders are incorrect?

  • Modification is straightforward if caught pre-18; after 18, future eligibility for benefits may depend on how the SSA interprets a late modification. Get it done early.

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7. Emotional and Practical Advice for Attorneys

• Special needs parents are more overwhelmed and anxious about divorce outcomes.
• Collaboration is ideal:

  • Collaborative law allows time and creativity rarely available in court.

  • Courts may lack knowledge, time, or appropriate tools to craft optimal plans for unique children.

  • Engage neutral experts (therapists, doctors, nurses) as witnesses for best-interest findings.

    "It's really hard for courts to craft solutions for families like this...I think as attorneys we need to be creative when we are approaching these cases."
    — Monica Peters [28:15]

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8. Presenting Complex Evidence in Court

• Use summaries and spreadsheets:

  • Summarize schedules, expenses, and needs to communicate efficiently within strict court time limits.

  • Summaries are often accepted in temporary order hearings.

    "I do a lot of summaries...I will ask them, have you reviewed this before? Does it accurately summarize your son's schedule on a typical week? And then I offer it as a summary...I've never not gotten it in."
    — Monica Peters [33:47]

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Memorable Quotes

• On the creative practice of law:

  "The answer is not probably going to be in the family code. You're going to have to come up with it."
  — Monica Peters [00:00; 28:15]

• Advice to young lawyers:

  "Don't be afraid to ask questions of us old family lawyers....It's a lot easier to ask questions on the front end than to wait till there's a big problem and then you're trying to fix it on the back end."
  — Monica Peters [35:21]

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Notable Timestamps

• [03:12] – How special needs change divorce dynamics
• [07:23] – Assessing appointments, schedules, and parent readiness for care
• [10:46] – Nesting and hybrid custody arrangements
• [12:34] – Use of communication apps and detailed parenting plans
• [15:35] – Conservatorship challenges and sole managing preference
• [18:29] – Why guideline child support is often improper
• [23:59] – How to structure child support for adult benefits eligibility
• [28:15] – Importance of creativity and collaboration
• [33:47] – Using summaries to efficiently present evidence

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Resources & Contact

• Monica Peters: neilpeterslaw.com
• Podcast Host (Holly Draper): draperfirm.com

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This episode offers essential guidance for family lawyers handling cases involving children with special needs—emphasizing creativity, advocacy, collaboration, and deep, individualized understanding of each child’s world.

Transcript

[Monica Peters]

And I think as attorneys, we need to be creative when we are approaching these cases. The answer is not probably going to be in the family code. You're going to have to come up with it.

[Podcast Announcer]

You're listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now here's your host, attorney Holly Draper.

[Holly Draper]

Today we're excited to welcome Monica Peters to the Texas Family Law Insiders Podcast. Monica is a partner at Neil Peters Law in McKinney, Texas, and her practice focuses on divorce, property division, child custody, adoptions and CPS matters.

She also mediates. Monica is a member of the Collin County Bar association, the Curt B. Henderson Inn of Court, and has been recognized as a rising star and then super lawyer every year since 2010. Thanks so much for joining me today.

[Monica Peters]

Oh, thanks for having me. I'm excited to be here.

[Holly Draper]

So why don't you start and just tell us a little bit about yourself.

[Monica Peters]

Well, I grew up in West Texas on a sheep and cattle ranch. So it's a little bit of a different background from a lot of people in North Texas. But from there I went to Texas Tech University and did my undergrad in law school time there.

Yeah.

Rackham Tech. We're having a good, good year this year.

[Holly Draper]

Yes, yes.

[Monica Peters]

And we're my husband and I both went to Tech, so we're Big Red Raiders and we watch all the football and basketball games. But we've got two girls, a 16 year old and a nine year old. And our nine year old has a medical special needs and intellectual and physical special needs. So that's part of what I'm here to talk to you about today.

[Holly Draper]

So how would you describe your current practice? I know you just went out on your own with Mary Neal and started up a new firm. Congratulations on that. It's very exciting. So tell us a little bit about that.

[Monica Peters]

I practiced for almost 20 years. It'll be 20 years next year. And I practice pretty exclusively family law. I do a little bit of estate planning, just simple stuff for mostly for current clients that need to get that done after their their case is over. But the rest of the time it's pretty much all divorce and custody adoptions. Handle some CPS matters. And I'm mostly practice in Collin County, Denton, Tarrant county and Dallas County. But I do go to other counties just depending on if people really want me to go represent them in their county elsewhere. And I do a lot of litigation. But I also have recently started a mediation practice and that's been going very well. I've actually settled every single case I've mediated so far and I've done quite a few now. It's not, I'm not like two cases in, so. So I'm pretty proud of that. And I've really enjoyed acting, serving as a mediator as well.

[Holly Draper]

I know we are always looking for good mediators, so I will be sure and tell my team to put you on the list.

[Monica Peters]

Oh great. Thank you.

[Holly Draper]

So today we're going to talk about something you mentioned a little bit about how, why this is an important issue to you. But we're going to talk kind of about the unique issues around special needs children. Specifically when we're talking about a divorce or child custody case. How do divorces involving special needs children differ from your run of the mill divorce with other types of children?

[Monica Peters]

I think the first thing you have to understand is that families that have a child with special needs are just different from the beginning. So that's going to make a divorce or a separation different as well. Unless you've lived that life, it's kind of hard to fully understand how different it is and in what ways it's different. I think with our daughter, just to give you a little bit of an idea, give your audience a little bit of an idea of what my life is like. I have a nine year old child, she's in third grade, she is in a wheelchair. She is non verbal. She, she does move around some. Like she can crawl but she is probably never going to walk. She uses a device to communicate that can track her eyes. So it's like a, it's kind of like an iPad and it can see what icon she's looking at and then it speaks for her based on where she's looking. And so, and she's got a lot of medical difficulties as well. And this is all related to a genetic disorder that she has. So our life is different. It's not bad. I think sometimes people are like, oh that, that's really hard. And there are some things that about it that are challenging. But I think parenting is challenging in general. But our challenges are different. So because she has all of these special needs, there are lots and lots of appointments. So she has three to four appointments every single week on a, on a, on a normal week. Sometimes she has more than that. And then she's, she gets sick pretty easily. And so when she is having, when she gets a cold that can mean she has to go into the hospital. It's not just she's home sick but she's like in the hospital for a few days and she doesn't eat orally, so she has a feeding tube. Well, actually, I'm misstating that she eats, but she can't drink, so she has a tube that we have to use for all of her fluids. So because of that, I can't just hire a babysitter. She has to have nurses that take care of her when I can't be there. Or sometimes we can get family to take care of her, but we can't just have any family take care of her because she weighs almost 70 pounds. So grandparents, it's, it's hard for grandparents to lift and carry a 70 pound child that's very active and moving and strong. So those kinds of challenges are the types of challenges that a lot of parents with special needs kids are having to deal with. And so the cookie cutter possession schedule is not necessarily going to work for those families. The child support outline that is outlined in the family code is not necessarily going to work for those families. The rights of conservatorship, the rights and duties might need to be taken a deeper look at depending on the needs of the child. For example, with overnight possession, if my husband and I were no longer married for some reason, it'd be pretty hard for one of us to do overnight possession with Haley because Haley has to have a special bed. So she has all this equipment that she has to have and you can't just go out and buy it because her special bed is like a $14,000 bed. And that's a big investment for somebody to make. And a lot of families wouldn't be able to afford to just buy a second one of those. So there are all of those implications to take into consideration. And then on top of that, there are services that have to be taken into consideration, services that the state provides, like financial benefits that the state provides that has to be taken into consideration. Nursing care and respite care that has to be taken into consideration for a lot of these families because a nurse might be able to go to mom's house, but not might not be able to go to dad's house. And so all of that is going to affect conservatorship, possession and access and child support as well.

[Holly Draper]

Okay, so let's kind of break down some of those different pieces and dive a little bit deeper into them. Let's start with possession schedules. You know, what are the things that as attorneys we need to be thinking about when crafting a possession schedule and what, what kind of things have you seen that we might not think about automatically as being options.

[Monica Peters]

So when I have a client that comes in with a severely special needs child and we're starting to talk about possession, one of the first things I ask them about is what are their appointments like? Because for a lot of these kids, they have a lot of kind of set appointments every week. So I kind of get a better idea of what is the child's schedule truly during the week. So for example, Haley has physical therapy, speech therapy, feeding therapy and occupational therapy every single week. I'm responsible for getting her there. So I would need to know what is the child's schedule, who historically has taken the child to those appointments, what is the ability of both parents to get the child to those appointments, things like that. I also need to know things like what is their evening schedule, like what is their bedtime schedule, and is it something that both parents are able to do? Some of these kids have medical treatments that need to happen every single night and both parents don't know how to do it. And maybe even both parents, parents have, do not have an interest in knowing how to do it. I mean, unfortunately or very frequently, one parent is taking the lead on these kinds of things. And so the other parent would have to be willing to learn how to do these and to do them consistently if they're going to have overnight possession. And then the. A big issue for a lot of these families is equipment. Most children with like true severe special needs, if they're requiring equipment, most of the time they've got Medicaid benefits. Sometimes they've got health insurance as well, private health insurance with their Medicaid. But all of this equipment is insanely expensive just because it's got the word medical in front of it. So you're not necessarily going to be able to duplicate at both homes all of this equipment. And some of this equipment is not really like, of the size and nature that it would make sense to transport it between homes every single time. Some of it you could, some of it you can't. And so if that's the case, then is overnight possession even feasible? And because of that, where it's not feasible, you may just have to come up with a different possession schedule, like be creative with your solutions.

[Holly Draper]

It seems like it is probably not that unusual when a couple with a child with these, this level of needs, one parent is going to bear the brunt of the burden.

[Monica Peters]

It's pretty typical. It's whether you're together or not separated, whether you're with your, your child's parent or you're separated from them, usually there is one parent that's taking the lead. Honestly, these issues can be so complicated that it's. It's probably better for there to be one primary parent that's kind of the. The lead contact for the doctors and nurses and who's kind of organizing it all.

[Holly Draper]

I know in our typical family law cases, we normally try to discourage people from talking about nesting, but this seems like a situation especially because of the equipment and the difficulty of moving a child between houses. Do you see where nesting works or is more common for these types of families?

[Monica Peters]

I think it is more common compared to the average case. I mean, we almost never do nesting, but I have done it more and more as I have done more special needs cases, because sometimes that's the only real solution. The other option is just that one parent doesn't really have overnights or do overnights. And that's not ideal. Sometimes what I do is sort of like a hybrid nesting arrangement where one parent is not really doing overnight possession, but once or twice a year, maybe there's a one or two week period where the parent who is the primary parent is getting a break and they're taking a vacation on their own without the child. The child stays at the home and the. The other parent nests at the home with the child during that period. I think that's a pretty good solution if you don't want to do a true nesting situation. I think nesting can be really hard and it gets very complicated, especially when you're talking about children who are young. And so then you're talking about maybe 10 to 15 years instead of three or four years where you're going to be doing this nest nesting thing. And maybe people want to get remarried and maybe they want to have other kids. The nesting doesn't really make a lot of sense. And so, you know, maybe they already.

[Holly Draper]

Do have other kids where these factors don't come into play.

[Monica Peters]

Exactly. So I think. I think the hybrid model is kind of a good solution. And it kind of also builds in a break for the parent that's bearing the. The brunt of the work burden.

[Holly Draper]

So other than just looking at the schedule and the things that we normally include in any parenting plan, what are some other types of things we need to think about including in parenting plans when we have a special needs child?

[Monica Peters]

Well, first of all, I always, always use an app, like our family wizard or App Close, because there is so much information that needs to be shared when you have a special needs child. And that makes it an easy place, just like automatically after every appointment you can upload the visit summary and be done with it. And also to maintain medical expense reimbursement so you know whether something's been paid or not paid. So that's number one. The, the next thing that I always make sure is that we talk through if there are any special medical issues that we need to have some special clauses for. Because the, the term invasive medical procedure can be a little bit vague when you're talking about a special needs child. Because some of these decisions would be considered invasive medical for your a typical child. But for a special needs child, it's just a day to day decision. And if you have to shut down and get a joint agreement on every single one of these decisions, it would be kind of paralyzing and you can't move forward in the process, especially if you have one parent who maybe is not responding very quickly. And we may need to build in some extra language regarding what decisions the primary parent's allowed to make without having to get consultation or input or agreement from the other parent first. We may also need to build in language for what to do with hospitalization. We may need a build in language for, you know, special summer programs for the child with special needs kids there that they don't really go usually to camps necessarily or things like that, but they may have like a day hab program that they're involved in or there are other special needs programs that are just different for these kids that may need to be addressed separately because they're not going to be in a standard possession order. So you really just need to have a conversation with your client, talking through every part of the year, including the summer, regarding all of the things that they deal with. Because the reason we call them special needs is that they are not typical. So there's, there's not going to be even for a special needs kid. You're not going to have a special needs solution for all of your clients. It's going to have to be tailored for every single one separately. And the only way you're going to know how to tailor it is to have a full conversation about what a standard day is like, what a standard week is like, what a summer looks like, and just really dig in deep and get a lot of detailed information and get feedback from your client about what they think might be a good solution.

[Holly Draper]

So let's talk a little bit more about the rights. And I know even just with a typical child we always have to talk about, you know, joint versus sole and Are we going to have certain rights being exclusive? Are we going to require joint agreements? Do you see, see there being more scenarios with special needs kids where we need a sole managing conservator or is it still typically joint?

[Monica Peters]

I feel like frequently. Well, not, I wouldn't say frequently, I would say more than typical. When you're dealing with special needs kids, you might see a sole managing conservator more often. And that is a little bit due to the sad fact that a lot of times because of the challenges with special needs kids, you will have one parent who checks out. And that's, I mean statistically it's just a reality where there's one parent that is overwhelmed by it and they can't handle it for one reason or another. And so they'll send a child support check and they don't really want to do anything else. It's heartbreaking, but it's true. And so in that situation, obviously you're going to want a soul managing conservator. And my experience has been that the other side doesn't typically argue too much about that. And that's the end of it. Because you need to have a parent that is able to make a decision. And there's so many decisions to be made for these children. Much more than your typical kid. Not just medical, educational as well, because you are having IEPs kind of adjusted and messed with all the time. I know I get called frequently from the school. I mean she has like a private physical therapist, but she also has a school physical therapist. She has a private speech therapist, but she also has a school speech therapist. So it's just, it's a lot. And if, if you have an uncooperative co parent or an absent co parent, then the parent who is present making those decisions needs to be able to move forward and make those decisions.

[Holly Draper]

And even with a joint managing conservator situation, I think this is probably where you need somebody having the exclusive right on educational, you need somebody having the exclusive right on medical because there's so many more decisions having to be made than in your typical case.

[Monica Peters]

And I've done a lot where one has exclusive, but they have a consultation obligation or a notification obligation. And we spell out clearly what that involves. Like what, what is considered sufficient notification and what is considered sufficient consultation. If it is by joint agreement. I always write in a deadline like you have to respond and it's pretty short. You have to respond within 24 hours or the other parent can move forward with a decision. Because sometimes these, I mean sometimes These appointments, for example, take months and months and months to get into. And you get a call with an offer for an app, and you kind of need to take that appointment because it might be months before you can get in again. So you can't. You just can't have a parent that's stuck waiting for somebody who's never going to respond.

[Holly Draper]

So what about child support? And you mentioned way back at the beginning, the typical guidelines that we have in the Family Code really shouldn't be applicable here because such a different situation. Do you see, normally the guidelines are still being used, or what do you see as the typical outcome related to child support?

[Monica Peters]

Well, I'll be honest, when I get a case that has already had child support ordered in the past, so maybe they're coming to me for a modification. A lot of times lawyers are just using the guideline support, and that is a mistake in my opinion. The Family Code and case law is pretty clear that the court is supposed to be taking into consideration the needs of the children and also the abilities of the parents to provide. And one thing that as an attorney, when you are representing the primary parent who is typically either unable to work or their ability to work is at the very least affected, if not severely limited by the requirements of their children, you should be advocating for the court not to compensate your client, but to take into consideration the fact that they can only work 15 hours a week because they have all of these other things that they are required to do, or they keep getting fired from every job because they have to take off so much time to get their kids to all of these appointments, or their kid is sick all the time, and so they have to stay home. And so their ability to provide for the child is severely affected by their child's conditions, their child's disabilities, and that the other parent needs to pitch in more than their 20% or whatever their percentage is based on the number of kids. And so the court is supposed to be taking into consideration not just the child's needs, not just the obligor's income, but also the obligee's ability to provide financially for the child. And I just think that a lot of times as attorneys, we're like, well, a child supports a mathematical equation and that's the end. And that's kind of lazy. And it's also incorrect.

[Holly Draper]

So do you normally when you're trying to come up with a number or you're trying to argue to the court for a number, do you use the guidelines as a starting place or are you Throwing them completely out the window. How do you come up with what you're asking for and what you think the court should do?

[Monica Peters]

Well, I'll start when I'm back in my office. I start with the guidelines because the court is it can't order more than 100% of the child's needs or the guideline presumed guideline supporter. So what if I can't prove more than what the guideline support is? Well, then I want the guideline support, obviously. So I don't. I wouldn't say that I throw them out completely, but. But I want to get from my client a list of the child's financial needs and they need to consider everything again year round. So that needs to include the special programs that they do in the summer. That needs to include any sort of respite care that, that they're going to have to pay for out of pocket. So I want to get the financial information sheet that I send for my clients who have special needs kids is different than that of the financial information sheets for parents who have typical kids because I want them to think through every little expense that they might have and include that. And then if the average monthly demonstrated needs of the child exceed that of the guideline support, then we're going to look at each parent's ability to provide and get as much from the obligor as we can. If I'm representing the obligee.

[Podcast Announcer]

This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non parent custody cases, jurisdiction issues, property division standing conservatorship, possession and access termination, parental rights and grandparent access. For more information visit DraperFirm.com or call 469-715-6801.

[Holly Draper]

How, if at all, does the child receiving Social Security disability benefits impact that calculation?

[Monica Peters]

Well, I mean, obviously if they're receiving Social Security or disability benefits, then that's going to reduce the. The financial needs of the child. That's going to be taken into consideration. Well, it's two things. First of all, that's going to be taken into consideration. So that's going to reduce the needs of the child that the obligor would need to provide for. The second reason it matters is you want to make sure that when you have child support ordered, you write it into the order in such a way that it is not going to negatively impact the child's ability to receive those benefits. If, for example, you just order child support to be paid indefinitely by the obligor to the Obligee for the support of this child, which I have seen also frequently, that is a major mistake because most of these kids are receiving Medicaid benefits. Some of them are receiving Social Security benefits under the age of 18, most of them aren't. But some of these kids are receiving Medicaid benefits through what we call a waiver program, which means that their parents probably make too much money for them to qualify for Medicaid. But the waiver program says because you have X, y and z special needs, you qualify for Medicaid based on the child's income, which is typically zero, and the child's assets, which are typically zero. But if you have child support paid for a child indefinitely, so beyond the age of 18, and that support is going to be paid by the obligor to the obligee like you normally would have, from dad to mom or mom to dad, once that child reaches the age of 18, the government is going to treat the child support payments that the obligor is paying to the parent as income. To the child, it's going to be attributed as income. And so that's going to affect whether or not the child now qualifies for Medicaid benefits and or Social Security benefits, which can be thousands and thousands and thousands of dollars of benefits. So it's a huge mistake. You have to have it worded in such a way that once the child reaches reaches the age of 18 years, that child support payment is now going to be paid into a special needs trust that the obligee can then access and use for the benefit of the child.

[Holly Draper]

So what happens if you are doing a mod or you're coming across somebody's order and they don't have that done correctly? Is it a big deal to get a modification to change the beneficiary essentially of the child support?

[Monica Peters]

I've never had a problem getting that done. I've never had anybody contest it. Typically maybe I've had an obligor who doesn't like their kid enough, I guess, to say that. But they're not willing to say it in court that they want their kid to be kicked off of Medicaid and Social Security. And frankly, it would only negatively impact the obligor and the obligee really, because then they're going to have to come up with money to bridge the gap. So I've never had anybody push back on that. I've always been able to enter a greed orders on that. But it, it really needs to happen before they turn 18.

[Holly Draper]

What happens if it didn't happen before they turn 18 and somebody comes into your office and they've the child has lost benefits because this was done incorrectly. Can you get that undone? Do you just look going forward with the modification, how do you handle it in that scenario?

[Monica Peters]

I've actually never had that happen, but presumably, I mean it's a child support order, so it's modifiable. What I don't know is will the Social Security administration, I mean I don't think they would retroactively undo it, but the next time that the child could apply, I would think that that would fix the problem for the next year that the child applied for Social Security benefits. My question is, and what I don't know, and it probably depends on who's desk it lands on, is will the, would the Social Security administration treat that almost like fraud? Like, well, you, you changed it, but really it's still being attributed to the child? I don't think they would, but I guess that they could. I mean it would, I would rather not find out. I guess that's the short answer to your question. But I mean it's a modifiable order so I don't know why you couldn't modify it and get it changed to be paid into a special needs trust trust.

[Holly Draper]

So if we have clients that have special needs kiddos that are not 18 yet, at what stage do we need to be advising them to go talk to someone that can do a special needs trust? When do they need to get that set up?

[Monica Peters]

Sooner rather than later. Especially if they might have family that that has assets that they might want to leave to grandchildren. Because for example, because for example, my daughter, she can't inherit directly from my parents or my, my in laws because those would be assets that she now owns and then she wouldn't qualified for the Medicaid waiver program that she is on. So it is not expensive to set up a special needs trust. You don't even have to fund it right away. You just have to have a place for things to go into and then you need to have all of your family who has left anything to your special needs child or who has left anything to that generation and hasn't specifically excluded that special needs trial to do a codicil and clarify that they want anything that would have gone to that child to go into the special needs trust.

[Holly Draper]

Are there any other issues that we haven't talked about related to special needs kids in the family law context that you think people should be aware of?

[Monica Peters]

I mean, a few things. First of all, I feel like these clients of mine who have special needs children, and if they are the primary parent taking care of the special needs child, they are more overwhelmed than my average clients because they're already dealing with a lot extra. And now they're trying to figure out how they're going to deal with all of this extra all by themselves. And even if they were primarily doing it all by themselves already, they weren't financing everything all by themselves. And so they're more stressed out and more anxious about what this is going to look like in the end. And I think it's really important to be sensitive to that, but to also know that it's gonna, it can work out. One other thing I like to try to do is do this as amicably as possible with the other side. It's really hard for courts to craft solutions for families like this. It's really hard for them to understand the nuances of what that life is like. I've done a few now collaborative cases and I'm actually not collaboratively trained, but I got pulled in as a, as an attorney on a collaborative case that involves special needs children. And that process really worked really well because we were all able to sit down and talk at length in a collaborative way about really and truly what are the needs of the child now, what do we anticipate them being needing in the future? Especially when you're starting to talk about transitioning a child from, from being a minor to being an adult, from being in school all day to maybe needing some sort of day hab solution or group, group home solution, that is it. It makes a huge difference if you can do it collaboratively. And so I think that these types of cases are especially well, well set up for a collaborative case. I, frankly, I'm a litigator, I like to litigate cases, but not necessarily for these cases. And I think as attorneys we need to be creative when we are approaching these cases. The answer is not probably going to be in the family code. You're going to have to come up with it and you're going to have to try to convince the other side to get on board with your solution or be open to other suggestions. And maybe their suggestion is better. I've had that happen plenty. And then if you can't get to an agreement, you're going to have to be able to show the judge why what you're proposing is really and truly in the best interest of the child. I really think that in every case I've had to take in front of a judge that involves a special needs child. I feel like these, the judges have taken extra time and really put in a lot more thought about what this child needs. I've had to bring in experts most of the time to be able to explain why something is truly needed for a child. So you need to be on top of your case, designating experts, doctors, therapists, nurses, especially if you've got a case that involves at home nursing care. Those can be great witnesses that, that are, they are neutral. They, they might like mom better than dad or they might like dad better than mom, but really and truly their job day to day is to take care of that child. They know on an intimate level what that child's life is like. And so those are great witnesses that judges really like to hear from because they can really explain to a judge what a child needs. And that has to be the focus of your hearing.

[Holly Draper]

Well, you and I practice primarily in the same counties. I know a lot of those counties and judges have very strict time restrictions on hearings and trials. Have you been successful in arguing for more time for your trials or your hearings because of the nature of a special needs child and how that complicates things?

[Monica Peters]

So I have not, I haven't needed it, but it's because I do a lot of summaries, honestly, I do a lot of summaries where I, I will like create the child's schedule and it's a summary of the child's schedule and I enter it as a, as a summary of testimony. And I do a lot of lists and I do a lot of spreadsheets of expenses and I get it in that way. And in all of those cases the judge has taken everything under advisement. And I have to think based on the rulings that I'm getting that it's because they're going back into chambers and they're looking at all of those things before they make a ruling. And so that's the solution that I've come up with. I have not had an issue having enough time at trial. It's really the temporary orders, hearings that, that will get you. And usually at that point we're not looking for long time solutions. And so I'm usually explaining to a judge why an overnight doesn't make a lot of sense and why our solution is a little bit better. And then I'm trying to get into the finances of everything. And so that's why summaries are typically sufficient for those kind of narrow issues because judges are a lot more willing to not over order overnights on a temporary basis than at final trial. At trial, obviously, I spend a lot more time in actual hearing time talking about all of that.

[Holly Draper]

So when you do these summaries, we have a lot of younger family or newer family lawyers that listen to the podcast. Can you talk about how you're actually getting these summaries in and how, like, are you having the client or the witness testify to all those things first and then doing a summary? Are you doing a summary in lieu of the testimony? Talk about the logistics of how you do that.

[Monica Peters]

It's really kind of a summary in lieu of testimony. And I'm benefiting from kind of the loose interpretation of the rules of evidence that the courts typically apply in a temporary orders hearing. For one thing, they. They're probably not going to get appealed, and so they're letting more stuff in. And. And they also understand that the time limit is highly restrictive and they need to enter an order, especially in this case with this highly special needs kid that is actually going to work. And so they need this information. They kind of want it. So I will start with a big asterisk that I'm benefiting from that fact that they are going to kind of let more in. Then they might add a final trial. But I've also never had trouble getting it in. So normally what I do is my client will have seen all of my summaries in advance. So the last thing you want to do is spend. Have them spend time reading it for the first time while they're sitting up there on the stand. So I will have them turn to mother's exhibit four. I will ask them, have you reviewed this before? Does it accurately summarize your son's schedule on a typical week? And then I offer it as a summary. I just. That's it. That's the whole foundation. I've never not gotten it in.

[Holly Draper]

Do opposing attorneys typically object or are they usually letting those in?

[Monica Peters]

They're usually letting them in. I've had a few people object. The judge overruled it and let it in.

[Holly Draper]

All right, well, we're just about out of time, but one thing I like to ask everyone who comes on the podcast is if you could give one piece of advice to young family lawyers, what would it be?

[Monica Peters]

I think that my biggest piece of advice from young and family lawyers is to not be afraid to ask questions of us old family lawyers. We remember being young family lawyers, we had to ask a million questions. I certainly don't mind asking questions, especially if it's something that I kind of have a niche knowledge about. So don't hesitate to reach out to other family law attorneys. Even if you don't know us, most of us are more than happy to give you feedback. And it's a lot easier to ask questions on the front end than to wait till there's a big problem and then you're trying to fix fix it on the back end. So ask questions.

[Holly Draper]

So where can our listeners go if they want to learn more about you?

[Monica Peters]

You can find me on my website, neilpeters law.com and you can also just if you see me on Facebook, reach out. But that's probably the best place to find me right now.

[Holly Draper]

Perfect. Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, please take a second and leave us a review and and subscribe to enjoy future episodes.

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The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law and appellate matters. For more information, visit our website at www. Draperfirm. Com.