The birth of a first-born child should be a source of joy and amazement for both mom and dad. Even when the child is born with a disability, American society has transformed enough over the past several years that families may view the disability as just another reason to celebrate change, diversity and enrichment in their lives.
That is why a recent news story about a mother who divorced her husband and abandoned her family after finding out her new-born daughter had Down syndrome truly shocks the conscience. Yet this unfortunate choice by the mother also gives an opportunity to pause and reflect as to what dads may need to be aware of if they find themselves in a similar situation.
As seen in this story, there is even more evidence that the role of fathers is evolving and that men who accept fatherhood are embracing it fully. Additionally, it is becoming more apparent that this acceptance of fatherhood is to be unconditional — even if one of the conditions happens to be the birth of a child with a serious and permanent disability such as Down syndrome.
While the father in this news story was in Armenia, there are typically protections for a man in such a situation here in the United States.
For example, where I practice in Pennsylvania, if a husband is faced with a wife who wants out of the marriage and flees, he still has the option of filing for a fault divorce. If the wife leaves the father and baby while remaining nearby, there is the option of attaining a divorce because she “offered such indignities to the innocent and injured [husband] as to render his . . . condition intolerable and life burdensome.”
Whether the brave man in this news story suffered such indignities is a fact-specific inquiry that must be made considering all of the relevant circumstances; however, such divorce grounds have been established in Pennsylvania when there is “ neglect, intentional incivility, manifest disdain . . . and any other plain manifestation of hatred and estrangement.” McKrell v. McKrell, 42 A.2d 609, 612 (Pa. 1945).
If the wife does not stay around, a divorce may also be granted on fault grounds if it is shown that the wife abandons the husband and child so that she does not live with them for at least a year.
In the recent news story, the father plans to move back home where he has the love and support of his family. Additionally, there is fundraising being performed to assist the new dad and baby.
Of course, the support network of a loving family would be critical for someone in this situation, but what if you are a father (with a newborn or older child) and you don’t have such a network? How will you be able to raise a child who will have significant financial and medical needs?
Fortunately, there are laws in place to assist a father so that he can have additional financial resources in order to raise a child by himself, even a child who may have significant medical bills due to a disability.
In Pennsylvania, for example, a father who has sole physical custody of his child may be entitled to child support from the mother if he earns less than her. To seek such child support, the father may file a claim for it in the divorce complaint or separately with his local Domestic Relations Office.
When the child has a disability, the accrual of sizable medical bills will most likely be a concern. Pennsylvania law allows for a mother who has abandoned the child to pay for medical insurance if available to her. Alternatively, if the father is paying the health insurance premium, that payment may be divided between him and the mother.
For more serious medical conditions, the court may order a wife to pay for a portion of unreimbursed medical expenses that a health insurance policy won’t cover that are in excess of $250 per person, per calendar year. These options may very well come into a play for a child who has a disability such as Down syndrome.
While the regrettable situation in this news article appears to be rare and extreme, if you are a father who is in a similar situation, there may be similar laws in your jurisdiction that can assist you in such a difficult time.
Therefore, it is strongly suggested that you seek legal advice from an experienced family law practitioner in your area, such as Cordell & Cordell, who may be able to provide counsel on dealing with spousal abandonment.
Prior to practicing family law with Cordell & Cordell, William J. Phelan, IV,Esq. was a staff attorney for the American Bar Association’s Commission on Disability Rights, assisting individuals with disabilities both in and out of the legal profession and represented individuals with mental health impairments before the District of Columbia Family Court.