Divorce and Autism: A Legal Perspective

This article was adapted from a New Jersey Law Journal article with permission by the author, Lawrence R. Jones, a former New Jersey Superior Court Judge who retired from the Bench in 2017. Prior to his appointment to the Judiciary, he served as a gubernatorial appointee to both the New Jersey Council on Developmental Disabilities and the Adults with Autism Task Force.

The United States Center for Disease Control (CDC) has recently reported that one in 59 children have Autism Spectrum Disorder (ASD). In New Jersey, the rate is one in 34. Given the nearly 50% divorce rate in the United States, many divorces will involve parents of a child with autism.

Divorce is emotionally and financially difficult under the best of circumstances and makes the unique challenges and responsibilities of raising a child with autism even more complex. Ideally, parents work together to understand and meet their child’s special needs.

The Importance of Parental Collaboration

Studies repeatedly show that children with autism have an increased chance of improvement when they receive: (a) an early diagnosis and (b) intense early intervention via behavior therapy and other related therapies. These therapies require consistency to be effective.

Additionally, studies show that the earlier the child is diagnosed, and professional intervention begins, the greater chance there may be of success. Conversely, the older a child grows with little or no behavioral intervention, the window of opportunity may shrink to achieve his or her full potential.

For this reason, it is beneficial for both parents to be fully on the same page in supporting consistency of the therapeutic approach and the generalization in the child’s everyday life.

In the case of a contentious separation or divorce, former partners often have “irreconcilable differences” that make it difficult for them to effectively communicate and cooperate with each other. These circumstances create stress for any child, but in the case of a child with autism, it can also impair the intensity and consistency of the child’s ongoing therapeutic program.

While some divorced parents of a child with autism can put their past marital issues aside and work together to maintain a consistent approach between two homes during each party’s respective parenting time, other ex-couples struggle to do so.

So long as there is no restraining order prohibiting contact between the parties, separated or divorced parents of a child with autism generally have a clear ongoing obligation to attempt to cooperate and consistently address the needs of the child.

Navigating Custody Disagreements

Often, following educational mediation sessions, counseling sessions or settlement conferences, the parties agree to forge a working relationship as divorced co-parents. When parties are unable to do so, custody litigation often arises.

In custody litigation, a court’s function is to protect the child’s best interests. The controlling consideration is the child’s welfare. For certain, a court in any case must consider the statutory factors in the New Jersey custody statute, N.J.S.A. 9:2-4. Among the relevant statutory factors for consideration are:

• the needs of the child
• the safety of the child
• the quality and continuity of the child’s education
• the fitness of the parents

However, the statutory factors for custody under N.J.S.A. 9:2-4 are not exclusive or exhaustive. The statute expressly states that in making an award of custody, “the court shall consider but not be limited to the (statutory) factors.”

More Considerations for Custody Decisions

Several years ago, the author of this article joined with noted autism expert Dr. David Holmes to develop proposed additional criteria for family courts to consider when adjudicating custody litigation concerning a child with autism. The “Jones- Holmes criteria” include the following additional factors, which a court may wish to consider on issues concerning custody and the child’s best interests:

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 acknowledgment and acceptance of the child’s diagnosis;
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 support and follow through on daily recommended behavioral interventions for the child with autism, and the level of participation the parent has in working with the child;
5. Each parent’s history of increasing his or her education on the needs of a child with autism, 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 an effective advocate for the child, and ability to do so;
7. Each parent’s ability to handle the emotional and psychological stress which may be involved with raising a child with special needs;
8. Each parent’s understanding and appreciation of the importance of early intense and consistent 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.

A court has discretion to establish different types of custody, including joint or sole residential or legal custody. Public policy generally favors joint legal custody.

However, joint legal custody requires an ability of parties to agree, communicate and cooperate in matters involving the health, safety and welfare of the child.

Before granting sole custody to one parent, a court has discretion to provide an opportunity for the other parent to demonstrate the ability to act in a manner consistent with the child’s special needs.

Negotiating Parenting Time

Regarding parenting time with a child with autism following separation or divorce, it is generally recognized that absent compelling circumstances, each party will be entitled to reasonable parenting time in his/her home. In determining the parenting specifics of a custodial arrangement, a primary and controlling consideration is the welfare of the child.

While it is understood that the accommodation of a reasonable parenting schedule between homes may require consideration of some flexibility or adjustment to a child’s therapeutic schedule, a parenting schedule should not unduly or unreasonably interfere with the child’s therapy schedule.

Further, when possible, the parents should attempt to implement similar approaches to therapy and reinforcement in their homes, so as not to go against the child’s need for consistency by presenting inconsistent or conflicting expectations. Additionally, when possible, both parents should be simultaneously receiving the same information, advice, input and feedback from any of the child’s treating professionals (therapists, teachers, etc.), so that the parents are on the same page.

It is advisable for both parents to engage in consistent and ongoing parental training on autism.  Additionally, when permissible, parents should strive to engage in constructive communication with each other on the child’s progress.

If the evidence reflects that a parent is acting in a manner which unreasonably interferes with or undermines the child’s therapeutic and educational program, or need for parental cooperation and support of a consistent program, a court may take action to protect the child’s interests, including short- or long-term modifications of custody and parenting time schedules, and/or a requirement of further mandatory education for the interfering parent on the nature and intricacies of autism. Hopefully, with cooperation by both sides, such steps will rarely be necessary to protect a child’s best interests.

Conclusion

With divorce come many challenges and changes for families to navigate. It presents additional complexity when a child has autism, and ensuring consistency and continuity is essential to meeting their needs. Using the information above as a guide, parents can work together to minimize disruption and to avoid extensive and costly custody litigation.

Once the child turns 18, some parents may have to consider whether they will require legal guardianship. While different laws apply to guardianship of adults, many of the criteria suggested for making custody decisions that benefit the individual with autism can be applied to circumstances that impact the adult child’s life, such as their ongoing treatment, need for long-term services and supports, living arrangements, health care, and other factors. For additional information and resources pertaining to adults with autism, contact Autism New Jersey.

More articles from the four-part Autism and the Law series are available on the New Jersey Law Journal website.