Positive Approaches Journal, Volume 9, Issue 1

Volume 9 ► Issue 1 ► 2020

When Custody and Autism Intersect

Honorable Kelly C. Wall

Abstract

Family Courts are called upon to preside over the increasing number of cases involving Autism Spectrum Disorder (ASD). However, judges are not trained on the challenges faced by ASD, and are ill prepared to create effective court orders, especially in high conflict matters.

This article will focus on the resources available to assist judges in customizing orders to meet the best interest of ASD children on a case-by-case basis. The article will also provide recommendations on how to enforce the terms of the Order and suggestions to encourage co-parenting.

Everyday our court system deals with a variety of complex issues involving children. Juvenile courts adjudicate children as dependents in family emergencies and sentence juveniles. Criminal courts deal with children who are the victims of crime. Family courts make significant custody decisions. Family court judges may preside over mundane issues such as soccer camp versus baseball camp, Monday school holidays, or allocation of extracurricular activity fees. When the issue of physical custody of children is involved however, the decisions become more complicated, especially when mental, physical disabilities, and/or developmental disabilities exist. One of the latest and growing concerns in family court is the sharp increase in the number of children who are diagnosed with Autism Spectrum Disorder (ASD) and potential implications for court decisions. Particularly, courts are not educated on the challenges facing these children and are unable to spot issues that are crucial to making decisions.

Unfortunately, with the rapidly increasing number of children diagnosed with ASD, it is inevitable that the number of children exposed to the court system will continue to rise, and parents of autistic children will be seeking the Court’s guidance for appropriate custody resolutions. Most judges do not know what ASD means and are not familiar with the challenges faced by autistic children. The obvious solution is to provide training programs. However, training is not mandatory, and our judicial system has not developed training resources to aid the courts. To date, the only source of training comes from voluntary seminars and panel discussions.

In many other sectors of our community, autism awareness has become a priority, and training programs have been developed for our first responders and prison personnel. The airlines, recreation and entertainment industries have also developed resources. The public transit sector trains its employees and has created programs geared toward encouraging independence for autistic passengers. Judges make crucial decisions every day that directly affect children, and yet they are lacking essential knowledge of the needs of the growing autism population. How can the average judge make sound custody decisions if he or she is not educated on the fundamentals of autism, especially where the case involves a high conflict couple who refuse to communicate and/or will not agree on the child’s diagnosis? To make matters worse, what happens when the lawyer has not conducted his/her due diligence on the child’s diagnostic needs?

In the absence of formal training, the burden of educating judges falls on the lawyers who appear in their courtrooms for custody matters. However, to effectively present cohesive and informative cases to custody judges, it is essential for lawyers to understand what an autism diagnosis means and what symptoms and limitations are prevalent in their respective cases. This article will focus on presenting well thought-out custody cases to guide family judges through a meaningful analysis of the custody factors to ensure effective and appropriate decisions that meet the best interests of autistic children.

What is Autism Spectrum Disorder?

ASD is a developmental disability with a wide range of symptoms. The characteristics of autism present serious challenges to children and their families in all areas of their lives including, but not limited to, living arrangements and social interactions. Children with ASD may also have limited verbal and nonverbal communication, an inability to tolerate transitions, or sensory stimuli that require a sensory free environment. ASD children can range from high functioning to low functioning, and their need for consistency is often paramount to their stability and ability to control behavioral patterns.

ASD has become one of the fastest growing developmental disorders in the United States with no known cure, cause, or consistent method of treatment. It is important for the Court to understand that no child with autism is the same; each has his or her unique characteristics. There is great diversity within the autism spectrum and no one tool to formally diagnose an individual. Dr. Stephen Shore, an autism advocate who is also on the spectrum noted, “If you’ve met one person with autism, you’ve met one person with autism.” Accordingly, it is essential that each child be assessed on a case-by-case basis. Failure to classify the symptoms specific to each child may cause adverse and harmful consequences when disrupting their routines. These factors are crucial to sound custody decisions and therefore, it is crucial for the justice system to take the lead in supporting and understanding the needs and challenges of the autistic population.

Autism Issues That Typically Come Before the Court

In custody matters, Courts are required to weigh 16 factors to determine the best interest of children. 23 Pa.C.S.A. §5328.[1] Courts hear testimony on each applicable factor and weigh them to determine on appropriate custody schedules. With all things equal, courts are encouraged to grant parents shared physical custody, which typically benefits neurotypical children. However, when a child is on the spectrum, the standard custody schedule may not suit the unique diagnosis of the child, especially where a child cannot tolerate transitions and/or requires a rigid routine. In those cases, Courts may give greater weight to factors that may otherwise not be as significant in the average case. Judges hear snippets of a case that an attorney has spent hours preparing, and it is advisable to assume the judge has never presided over an ASD matter. Accordingly, good lawyers are well advised to utilize the custody factors to educate judges on the unique needs of the subject child and why an individualized custody order is prudent.

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[1] See a full analysis of the 16 custody factors on ASD. When Custody and Autism Intersect, Pennsylvania Bar Association Family Law section – Family Lawyer – Winter 2019-2020.

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The first question asked in every custody case is who performs the basic parental duties for the child? In an intact family where there is a special needs child, it is not unusual for one party to coordinate, transport and attend doctor and therapy sessions with the child. This same parent usually fills the role custody factors to educate judges on the unique needs of the subject child and why an individualized custody order is prudent.

The first question asked in every custody case is who performs the basic parental duties for the child? In an intact family where there is a special needs child, it is not unusual for one party to coordinate, transport and attend doctor and therapy sessions with the child. This same parent usually fills the role of assuring the child’s medications are dispensed, special dietary needs are met, and daily routines are adhered to. (Herein referred to as the “lead” parent). The other parent is usually the income earner and not as involved with the day-to-day tasks. The working parent may not have been familiar with the daily needs of the child.

In high-conflict custody disputes, it is not uncommon for parents to cease cooperating, and the parent who was not directly involved in the daily care of the child no longer recognizes the lead parent as the decision-maker. The uninvolved parent may wish to take a bigger role in the care of the child, or sadly, may attempt to thwart the efforts of the lead parent due to the acrimonious relationship. Under these circumstances, the Court will want to know who the lead parent was, the duties performed on behalf of the child and whether that parent should continue to act as the decision-maker, especially where the divisive relationship overcomes the ability to co-parent. When the parties cannot cooperate with each other and cannot agree on a plan of action, the child’s daily treatment plan and routines may be adversely affected, and therefore it is crucial for the Court to take these issues into consideration.

The presiding judge will have limited knowledge of the facts of the case until the day of the hearing, and if the judge has limited exposure to cases involving autism, there will be a lack of understanding as to why a unique custody order may be in the best interest of the child. Accordingly, the attorney must present his/her case effectively to demonstrate why specific custody provisions are necessary. The Court may also interview the child to determine which household provides the comfort and stability the child needs.[2]  For example, the father may be remarried with a new baby while mom lives by herself. If the child has an intolerance to sensory stimuli, a crying baby or a new stepmother may be jarring to that child who cannot tolerate noise or requires routine. As noted above, the Court should assess each child’s characteristics on a case-by-case basis, and a child who can articulate his/her needs would be invaluable to the judge.

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[2] A judge may take into consideration the “well-reasoned preference of the child, based on the child’s maturity and judgment.”  23 Pa.C.S.A. §5328 factor 7. The judge’s decision to interview will most likely depend on where the child is on the spectrum and the child’s ability to communicate and understand the nature of the proceedings.

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The custody factors provide an excellent opportunity to highlight the pertinent issues to the Court. Although the factors collectively aid the courts in determining the best interest of children, some of the factors are more critical in the judge’s analysis as to which parent is most likely to meet the child’s specialized care, is more willing or able to co-parent, and can provide stability and consistency in a household which is best suited to address the child’s physical needs. In summary, the custody factors serve as an important resource for attorneys and courts to ensure positive custody outcomes.

The Role of Attorneys: Advocates or Counselors

The people best suited to understand the needs of their autistic child are the parents. However, when parties are at odds about the child’s diagnosis and services and the relationship is toxic, it is unlikely that the parties will reach a consensus on the best interest of their child. The stakes get higher when the autistic child is not verbal or cannot communicate his/her concerns, fears, or preferences. High conflict cases are challenging under normal circumstances, however, when the issues are complex and the parties cannot agree on anything regarding the child, it falls upon attorneys to investigate, assess the facts, and determine the merits of their case.

Attorneys are retained to advocate on behalf of their clients however, an uneducated lawyer may not be aware that what works for traditional children may not work for autistic children. For example, a shared physical custody schedule may work for one child, but not for a child with autism who may not favor transitions, inconsistent schedules, or disruption to his or her routine. What if you are representing a party who is pushing for shared custody and does not realize the consequences of a shared custody order or a parent who insists on shared custody despite the adverse effect on the child? What are your responsibilities to your client? Does an attorney have any obligation to the child?

In situations like this, the role of the lawyer can be confusing and at odds. Rule 2.1 of the Rules of Professional Conduct advises that an attorney should act as an advisor. In that case, does an attorney have an obligation to advise the client that a judge may give greater weight to factors that are not in the client’s favor? Conversely, Rule 1.37 recommends that a lawyer act with zeal in advocating for the client’s behalf regardless of the child’s needs. Should the attorney counsel the client on the difference between the needs of an autistic child and a traditional child? How can an attorney give any advice to a client if he or she does not understand the nature of an autism diagnosis? What happens during the case if the lawyer determines that the child’s special needs outweigh the client’s objectives? Is there an exception to the lawyer’s duty to be a zealous advocate? There are no easy answers and every case will present its own unique facts. Regardless of the role the attorney is playing, a lawyer’s representation is all encompassing and he or she must act responsibly and exercise due diligence in presenting custody cases.

High Conflict Custody Orders

Once the judge understands the family dynamics and the needs of the autistic child and determines that a custom designed order is required, what strategies are available? How does a judge determine what directives should be included in an order that meets the needs of the child? What happens in high conflict cases where the parties simply cannot communicate, do not agree on the child’s diagnosis, and refuse to co-parent? How should a judge address these issues? How does the Court ensure that the order is enforced once the parties leave the courtroom? It is difficult, especially in cases where lawyers are not able to communicate the needs of the child and/or are ill prepared to propose appropriate custody schedules. With or without educated advocates, judges are required to enter orders which address the best interest of autistic children.

Fortunately, judges have discretion in creating custody orders and there are several options available to the Court. Some of the suggestions presented in this article may already be employed by family courts judges. Judges may also utilize orders from other high conflict cases that may not involve autistic children but contain applicable provisions, and/or they may use some creativity and add specific directives based on the issues presented in each case.

Often, parties can’t agree on the child’s diagnosis, or the parties attend separate conferences with service providers and interpret the information inconsistently. In those cases, judges may enter pro-active custody orders directing the parties to meet with the child’s treatment team together. If the parties are receiving the same diagnosis and prognosis from a trusted qualified medical provider, they may be more inclined to cooperate with each other on a consistent treatment plan.

If a parent has not been involved with the child’s treatment or refuses to accept the child’s diagnosis, the Court may order that parent to meet with the treatment team and/or attend the child’s therapy appointments to observe the sessions firsthand. Attending one of these meetings may be a major eye opener for the parent who has not been the lead parent in attending to the child’s day-to-day care. A meeting with the child’s medical providers and/or attending the child’s therapy sessions may enlighten the “non” lead parent and provide a new understanding on why the child’s routine is so critical. That parent may be more inclined to work closely with the lead parent to discuss and agree upon a consistent routine in their respective households.

If the parties are still at odds, the order may require parties to attend co-parenting counseling with a therapist who is familiar with special needs or autistic children to help develop parenting strategies to ensure consistency for their child. The Court may also instruct the therapist to report if one parent is not cooperating, is antagonistic, or is obstructing the process.

In situations where communication has been difficult or nonexistent, the Court may order parties to download online applications such as OurFamilyWizard to exchange information through emails and calendars. The parties can utilize the program to list all medical and therapeutic appointments, provide updates on health and welfare concerns, and monitor diet and medication dosages. As the parties’ respective households change (i.e., new significant others, babies or stepsiblings) the child’s behavior may change and he/she may have difficulty adjusting. An online program may make it easier for parents to share their concerns and changes in the child’s behavior and may encourage consistency in the child’s care while avoiding toxic communication. This app is also a valuable resource to determine whether the parties are communicating. If a party is claiming that he or she was not contacted prior to a unilateral decision, the Court can review the communications and timeline to determine credibility. The online apps are an invaluable tool to monitor the parties’ communication history and willingness to co-parent.

What happens when one party refuses to communicate with the other party, refuses to comply with the recommendation or treatment plan of the child’s providers, or thwarts the efforts of the other party to follow the recommendation of the child’s providers? Courts may authorize third parties to intercede. For example, the Court may authorize the school nurse to administer medication if one parent is not compliant and refuses to medicate the child. In cases where the other parent is disruptive and refuses to communicate or cooperate, the court may grant sole legal custody to the lead parent to make decisions regarding the child’s treatment plan.

In summary, well thought-out custody orders that are crafted to meet autistic children’s essential needs may encourage parties to co-parent and be more willing to discuss and agree on consistent strategies and treatments plans. In the end, if the parties refuse to communicate and/or refuse to understand the needs of the child, there may be dire consequences for the child.

Biography

The Honorable Kelly C. Wall sits on the Montgomery County Court of Common Pleas where she presided over Family Court for ten years. Judge Wall developed a training program to educate the justice and legal communities on ASD with an emphasis toward accessing the needs of individuals on a case-by-case basis to ensure the best interest of each child is met through effective Court Orders. Judge Wall serves on the parent Board of Merakey which provides services to support individuals on the autism spectrum