It’s often said that marriage that includes a child with special needs is tough. But divorce can be even tougher. In most states, including California, often the special needs of the child are not taken into account when discussing custody, visitation rights, and child support. This is astonishing, considering that decisions are being made in the "best interest of the child."
As an autism advocate, I'm concerned that children with autism have particular needs that are not taken into account in divorce cases – and that this can be detrimental to their well-being. With all due respect, most attorneys, judges, family court counselors and custody evaluators in the family court system do not have an understanding of autism. How is it possible for them then to make decisions that directly affect the child?
Over the years, I have seen children and families suffer from this lack of knowledge. For example, in California, custody of a child is usually split 50/50 with each parent. What happens to a child with autism when one of the parents doesn’t understand the need for routine, structure, certain environmental supports and specific strategies for that child, and therefore does not provide them? If the special needs of a child are not considered, how is child support fairly calculated?
Often times, psychiatrists and psychologists will do assessments and give testimony in regards to a particular child that they have been treating. This can be helpful in regards to outlining the challenges and needs of that child. But unless the attorneys and the judge understand the basic fundamental challenges of autism, they may not understand how serious those needs are.
For example, in most child custody cases of neurotypical children, structure and routine are emphasized as good child-rearing skills. So when a parent of a child with autism states that the need for routine and structure is extremely important for their child, it is assumed by the family court system that the need is not any greater than for a typical child. But those of us who work in the field of autism know that it is drastically different than the routine and structure that a neurotypical child would need. Moreover, the difficulty of transitioning — i.e., from one parent or one home to another — is not understood.
In a recent divorce case, I was called upon as an expert witness. The judge asked many pertinent questions. I was able to discuss how autism, in general, affects children and how this impacts daily life, including the challenges of daily transitions and so on. When the judge announced his decision, he stated that the testimony I had provided in regards to autism had been the most practical, and instrumental in his decision making.
Considering the high rates of autism diagnosis (1 in 68 according to the CDC), how can it be that the family court system — there to serve the "best interests of the child" — has such little knowledge about the effects of autism on children? How can family court counselors and custody evaluators make assessments if they do not understand autism?
If you are a parent of a child with autism, here are some starter questions you will want to ask any prospective attorney for your divorce and child custody case:
- Do you have any experience with divorces involving special needs children — in particular, autism?
- In past cases, have you been able to convince the judge to take the child’s special needs into account when considering "the best interest of the child?"
- Are you aware of the complex needs of a child with autism as they grow older, and how these complex needs should be considered in the MSA (Matrimonial Settlement Agreement)?
Family law attorneys, family court counselors, custody evaluators, and judges have now been added to my list of people who need practical knowledge about autism. They need to learn more in order to be better equipped to truly make decisions in the best interest of any child with autism involved in a custody case.