Autism Considerations in Divorce, Custody, and Mediation

Divorce is a challenging process for any family. It is financially and emotionally taxing. When a divorce involves child custody – especially custody of a young child with autism – the potential for discomfort and uncertainty to affect the autistic child may become extremely high. However, thoughtfulness, self-awareness, and careful planning all can empower parents to make smart, constructive choices and hopefully create a new family dynamic in which their child can thrive.

Sensitivity to the unique needs of the child and the right attitude on co-parenting can make all the difference. As a former New Jersey Family Court judge, I saw and presided over many contentious divorce and custody cases in which parents were surprised to find themselves fighting their co-parent on even the smallest issues. When cases like this involve a child with autism, the child is frequently the one who faces the greatest risk of a negative outcome. Sometimes parents are stuck in a never-ending cycle of fighting over a child’s best interests, when mutually taking a step back and looking for a calmer approach may be more important to the best emotional interests of the child.

A high-conflict divorce between parents of a child with autism can potentially result in:

• Delay in diagnosis and skill acquisition
• Delay in starting medically necessary therapy
• Loss of treatment momentum
• Inconsistent approach to therapy
• Stress and confusion stemming from parents giving mixed messages to the child
• Possible regression in the child’s educational and behavioral goals
• Legal problems with school districts over conflicting positions or statements from the parents

Further expansion on these concepts is addressed in the video, Separation, Divorce, And A Child With Autism: Struggles Between Parents.

Families that are facing divorce may benefit from alternative dispute resolution, such as mediation. Divorce mediation can be a logical and preferable alternative to ongoing costly court battles. In mediation, a neutral third party helps the family try to resolve questions without the need for a contested trial. Divorcing parents often use mediation to address and peacefully resolve custody, parenting schedules and obligations, child-related educational and medical issues, division of marital assets, support-related issues, litigation fees, and other issues as well. When working towards an agreement, families of children with autism should be sure to consider various additional issues, including but not limited to:

• Therapy schedules and modalities
• Extended school year schedules
• Supplemental autism-related costs
• IEP related issues
• Ongoing autism-related training for parents and close family members to help constructively and consistently reinforce the child’s progress.

They may also want to try to answer the following questions:

• Will the custody arrangement allow the child to maintain the frequency and intensity of services without disruption or transition to a new provider?
• How will the child get to their therapy sessions?

In addition to mediation, many parents of children with autism can benefit from attending co-parenting counseling, which will be addressed in an upcoming article.

Unfortunately, there may be circumstances where a friendly divorce is difficult to achieve. In New Jersey, if there is an active domestic violence restraining order in place, mediation may be prohibited or restricted unless pre-approved by a court under specific guidelines and parameters.¹

Sensitivity and attention to the needs of the child during a divorce can make an enormous impact for children with autism and, while divorce can sometimes be a costly and emotional process, mediation can frequently make things easier for parents and children alike.

For more information on this topic and many others please call our 800.4.AUTISM Helpline. Like many specialty areas, family law is an area where the intersection of professional experience and autism expertise is rare. If families have had good experiences working with professionals in this area, we’re always looking to grow our referral database. Please email us at information@autismnj.org.

The author, Lawrence R. Jones, is a former Judge of the New Jersey Superior Court who retired from public service in 2017. He has been an educator and a leading voice on issues concerning family court and children with autism for many years. He is also the father of two children with autism. He presently teaches at the University of New Mexico and has annually presented programs in New Jersey and nationally on this topic. The author practices online mediation and has historically worked with separated and/or divorced parents to deescalate conflict and helps them put their children’s needs first. He is also the author of our article Divorce and Autism: A Legal Perspective.

1.  There is a relatively new program addressing possible mediation on economic issues (which are different from custody related issues or other non-economic issues) when a restraining order is in effect, but even under this program, there are specific preliminary requirements which must be met before a court may in its discretion permit such mediation to take place.