In many divorces, there are very contentious, time-consuming, and costly battles over child custody. It is important to familiarize oneself with the different types of custody in one’s state. For example, in some states, there are two types of custody: residential custody — which designates the parent with whom the child primarily resides – and legal custody, which designates who makes the major decisions on behalf of the child. In many jurisdictions, there is a public policy supporting joint legal custody, meaning that regardless of parenting schedules, both parents have the right to participate in major decisions regarding the child’s health, education, and general welfare.
In some cases, the parties agree to share residential custody as well, and develop a time-sharing plan in which each parent receives close to half of the time with the child. While this type an arrangement may work if the parties live relatively close to each other and communicate and cooperate well with each other, such an arrangement might be very challenging if (A) the parties do not live close to each other and (B) the parties do not get along with each other and cannot effectively co-function as shared residential custodians.
When a child of separated or divorced parents has autism or other special needs, it is usually very important for the child’s welfare for parties serving as joint legal custodians to be able to cooperate on parenting issues that may arise. Many important parental decisions may need to be made regarding a child with autism, including helping create and oversee the child’s educational program in conjunction with the school’s child study team members where applicable. There may need to be an unobstructed decision-making process on critical and often time-sensitive issues such as therapies, interventions, comparative school programs, adaptation of programs, and possible modification of programs. The child may be hurt and damaged by constant stalemates between contentious parents which can cripple the parental decision-making process and the child’s progress. So long as there are no safety issues involved between the parents themselves, some separated or divorced parents can put aside their differences and work constructively together for the good of the child. Others, however, are sometimes unwilling or unable to do so.
As noted, it is important to be familiar with custody laws in an applicable state. While a state may have a custody statute setting forth general criteria which a court may consider in deciding custody issues, when a custody case involves a child with autism, there may be additional fact-sensitive considerations that a court might potentially find relevant in a particular case. By way of example, it is possible that a court may have an interest in considering some of the following factors relative to the best interest of the child and the child’s special needs*:
- Each parent’s role in obtaining the initial diagnosis and any delay;
- Each parent’s acknowledgment and acceptance of the genuine diagnosis rather than denial of condition;
- Each parent’s role in obtaining early therapy;
- Each parent’s ability to reinforce with behavioral interventions;
- Each parent’s efforts in engaging in ongoing, continuous education in autism;
- Each parent’s ability to handle emotional stress which might sometimes arise while raising a child with autism;
- Quality of the special education services where the child resides;
- Other autism-related factors;
*Addressed in Autism and Divorce: Guidelines for Family Court Practice, by L. Jones and D. Holmes (2009)
Sometimes, in a contested custody case, the parties may obtain psychological experts, or the court may appoint one. The court may also potentially appoint a guardian ad litem to investigate and advocate for the best interest of the child.
Sometimes, divorcing parents of a child with autism admirably attempt to creatively arrange a parenting schedule where each parent gets to spend quality time with the child, without unnecessarily interfering with the child’s applicable therapies and while constructively attempting to learn as much as possible about autism spectrum disorder. Additionally, courts benefit from increasing awareness of autism-related issues as well. With the increasing rates of both autism and divorce, judges are constantly facing new cases involving families with children with autism. The challenge for family courts is to treat both parents fairly and equitably while safeguarding the needs and best interests of the child with autism. Through increased autism awareness, courts can arguably increase their abilities to assist children with autism under parens patriae jurisdiction, and can hopefully render decisions consistent with the children’s reasonable needs as part of the creative evolution of our law.
