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DIVORCE – CUSTODY, PARENTING TIME & SUPPORT CONSIDERATIONS FOR CHILDREN WITH SPECIAL NEEDS; ASD

New Jersey has the highest rate of autism in the country. This may be because there is greater awareness, more educational and diagnostic services so more children are being evaluated.

Parents play an integral part in their children’s development. Children with special needs in New Jersey must be provided a free appropriate public education provided by their local school district. With an autistic child, early intervention and effort to teach the children adaptive skills and behaviors requires more than the usual time and effort with increased financial and emotional impacts on the entire family. This requires cooperation which may be very difficult when parents are getting divorced.

The stresses of raising an autistic child lead to a high incidence of divorce. It then is necessary for such families to develop appropriate interventions and arrangements so that their children diagnosed with autism spectrum disorder (ASD) can develop into productive citizens.

Some parents suffer more depression, anger, anxiety and marital discord because of the maladaptive behavior of their children with ASD. Having a child with ASD presents long term challenges due to the parent’s caregiving responsibilities which may leave little time for the interaction between couples needed to maintain a reasonably happy marriage.

There are exceptions; however, when the marriage fails, the parents and the Courts must face a specific set of considerations as to custody and parenting time for the best interest of these children.

Both parents have equal rights to raise their children. Joint legal and shared physical custody with maximum time with both parents has been the guidepost in divorces in New Jersey. This may not be the best arrangement for autistic or special needs children. Most of the time the mother has to provide most of the caregiving time to the child with ASD. This can be emotionally wearing and have financial implications because the mother is unable to work outside of the household and places a greater burden of financial support on the husband. We at Helfand & Associates have also represented fathers who are not only working, but also taking on the primary obligations needed for these special children. Every case is unique. It is also recognized that the child with ASD requires consistency in divorce and may have great difficulty adjusting to change. Two households are created and parenting time may have to take place in the two new households. On one hand, this interferes with consistency but it may benefit the parent by giving each a break from the intensive caregiving attention required for a child with ASD.

There are also many challenges that the parents must face and agree upon concerning the education of their child. The local school district will provide an Individual Education Plan (IEP) which both parents should participate in. Often, the general special education offered does not meet the child’s specific needs or is acceptable to the parents. Psychological evaluations may reveal that other specialized schooling is required. The local Board of Education may not acquiesce to this and the parents, who want an alternate special education, may have to pay for and seek an education lawyer to press their case. This can be ongoing as each entry into a more advanced class may require this intervention to maintain the education believed to be the best. A special needs child is eligible for free appropriate public education to age 21.

Once the child reaches eighteen years of age, in some cases, the parents may have to seek guardianship. With divorced couples, if they cannot agree on every aspect of the guardianship, it will not succeed. Both parties must cooperate in the decision making for their child in such areas as health decisions, financial, education and vocational.

There is very little precedent in New Jersey for the Judges to make rulings on custody and parenting time in divorce with children who have ASD. The parties may have great difficulty in co-parenting and the child may regress as a result of the changes in the family. The effect of housing changes or instability caused by parenting time in two different households, lack of parental consensus as to education and services provided to the child are issues that the Court may have to examine to prevent harm to the child.

As such, the parents may have to compromise their own personal feelings in order to cooperate better with each other on issues concerning their child. Some parents may not accept the diagnosis of their child and will not cooperate with the child’s therapy and education program. One parent may blame the other for the child’s autism. Parenting time schedules must be arranged to work around the child’s therapy and special services schedule. The disagreements which may arise may call into question the value of joint legal custody. If there is no agreement on major issues, the child’s progress will be hindered by the discord.

With the best of intentions toward one’s child, each parent may believe and seek therapies and education that differs from that of the other parent. Parents will desperately attempt to help their child. Where each one believes that their research and plan is better than the other parents’. The inability to agree effectively harms the child. All children suffer when this occurs, but it is devastating to an autistic child’s progress.

Family Court Judges recognize the need to have a basic understanding of autism. The parents must realize that if they fail to work together to provide parental consistency, “joint legal custody” may not be in the child’s best interest and shared custody and parenting time may not be the best solution. There needs to be an acknowledgment that early diagnosis is important. There is a need for intense behavioral intervention and consistency of parental input.
The most recognized form of behavioral interventions for young autistic children is Applied Behavioral Analysis (ABA). Some professionals believe that the age of two to three is the best time to improve the autistic child’s functioning and that if delayed, it can have negative consequences on the child’s progress.

Parents must learn how to reinforce the professional therapy at home. A parent may have to give up a career to care for the autistic child. Many costs and expenses of therapy may not be covered by insurance. Parents have to develop a united front in obtaining and accepting the diagnosis. They will have to educate themselves as to the nature of their child’s disability. They will have to formulate a joint plan for therapeutic interventions with professionals and will have to subordinate their own issues to what the child needs and best interest.

A case, Rooney v. Wall, identified several factors which a Judge may consider when the parties have an autistic child.

  1. Each parent’s role in obtaining the initial diagnosis of autism, and any delay caused by a parent in obtaining the diagnosis;
  2. Each parent’s acknowledgement and acceptance of the child’s autistic disorder, as opposed to a denial of the condition;
  3. Each parent’s role in obtaining early intervention and therapy for the child, and the reasons for any delay in attempting to obtain services for the child;
  4. Each parent’s ability to reinforce and follow-through on daily recommended behavioral interventions for the autistic child, and the level of participation the parent has in working with the autistic child;
  5. Each parent’s history of increasing his or her education on the needs of an autistic child, by attending seminars, joining autism support groups, seeking private professional assistance and engaging in other reasonable self-education techniques;
  6. Each parent’s history of willingness to be a tireless and effective advocate for the autistic child, and ability to do so;
  7. Each parent’s ability to handle the emotional and psychological challenges which may be involved with raising a child with special needs;
  8. Each parent’s understanding and appreciation of the window of opportunity concept and the importance of early intense intervention and potential consequences to the child and family if intervention does not take place;
  9. The quality of the special education (either in public school or private school) the child will receive while in the parent’s care.

These are in addition to the statutory factors of NJSA 9:2-4, which include fitness of the parents, needs of the child, safety of the child, quality and continuity of the child’s education.

Children who do not suffer from ASD are affected by divorce. Disagreement and acrimony is known to harm children who are exposed to it. A child with autism is more vulnerable to harm caused by exposure to parental discord.

Parental inability to cooperate may require a different custodial arrangement in order to assist the child. Divorced parents may not be able to cooperate or agree upon significant issues concerning the child. Under such circumstances, the Court may grant one parent sole legal custody for decision-making on specific issues concerning the child with ASD. The parents, too, must acknowledge what obligations they are willing and capable of handling and whether they can entrust certain decisions to the other parent. It is always desirable for the family to make their own choices, but where the parents cannot agree, the Court will address the issues in each case to make appropriate custody decisions.

For a free half hour consultation call Helfand & Associates at 973-428-0800. Helfand & Associates are experienced matrimonial attorneys, handling all aspects of divorce.

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