When Custody and Autism Intersect

Liliana Yazno-Bartle, EsquireTHE LAW OFFICES OF CARYL ANDREA OBERMAN

607A North Easton RoadWillow Grove, PA 19090

(215) 830-5025

August 1, 2012

What is Autism?Autism is a lifelong developmental disability,

affecting both verbal and nonverbal communication as well as social comprehension and social interaction. It is not a mental illness, per se, nor is it simply mental retardation

Autism is a pervasive developmental disorder of the brain. While its cause is unknown, its impact on behavior and its additional stress caused upon the family is clear.

AutismAutism is also a spectrum. Children

are considered to be high functioning to nonfunctioning.

The Autism Society of America indicates that autism now affects approximately 1 out of every 100 children born in the United States.

What are the Core Symptoms of Autism?

Social Interactions & Relationships Problems developing nonverbal communication

skills, such as eye contact, facial expressions, and body posture.

Failure to establish friendships with peers.

Lack of interest in sharing enjoyment, interests, or achievements with other people. (Rigid, inflexible thinking).

Lack of empathy. May have difficulty understanding another person's feelings, such as pain or sorrow.

Verbal & Nonverbal CommunicationDelay in, or lack of, learning to talk.

Problems taking steps initiating and sustaining a conversation.

Stereotyped and repetitive use of language (or echolalia).

Difficulty understanding another person’s perspective (humor or sarcasm).

Limited Interests in Activities or Play

Unusual focus on pieces of an object.

Preoccupation with certain topics.

Need for consistency and routines.

Stereotyped behaviors (body rocking and hand flapping).

Children with Autism to varying degrees:

Tend not to be resilient with bouncing back after missed visitation period.

Tend to be sensitive to the environment and become highly stressed as a result (sensory integration issues, noise, distractions, smells).

Tend to have difficulty with transitions or changes.

Autism &Custody

The best interest of the child is expanded to include a parent that understands and can care for the autistic child in a way that demonstrates that they can meet the increased time commitment and other demands.

Custody DeterminationsMethods of determining custody are altered and must

be carefully analyzed by Judges and attorneys when dealing with children suffering from this disorder.Capability and Competency of primary physical parentEducational needs of the childSafety of the childQuality of the child’s educationChild’s developmental ageQuality of time involved in care givingNature of physical residenceProximity to specialized school/servicesALL of the above must be looked at in more detail by the

Courts, and often times there must be a greater reliance on professionals.

Factors to ConsiderOften, one parent in a custody proceeding

fails to acknowledge the existence or severity of a disability, or cannot recognize signs of pain, illness or injury.

Is the parent willing to increase her/his education about the needs of the child?

Does the parent have a history of being an advocate for the child?

Minimize ConflictIt is absolutely critical to minimize conflicts

between the parents with reference to therapy, intervention, behavioral modification, and structure.

Practice Tip: Use highly skilled professionals in the field to assist in effectuating a custody/visitation schedule.

Parent QuestionsPractice Tip: Ask your parent-client:

What they know about special education.Why they believe it is necessary.What they have done for the child in

terms of therapeutic support.What issues of medication exist, if any. What behavioral therapy, if any, is

anticipated in the future.

Shared Physical CustodyShared physical custody is also affected when

dealing with an autistic child.

This type of arrangement may not necessarily be in the best interests of an autistic child or a child on the autism spectrum.

These children require tremendous consistency and are used to consistency. They often thrive in a more structured environment. The “back and forth” which is often required in a shared arrangement may not work.

Special Education &Custody

Evaluation Report (ER) and Individualized Education Program (IEP);

Non-custodial parent should become involved in the ER and IEP process by becoming an active member of the IEP team. This will serve to educate the non-custodial parent on what the child’s needs are.

Practice Tip: Advise your non-custodial parent to notify the IU/school district of joint legal custody status by sharing a copy of the Custody Order.

Custody OrderPractice Tip: Include language in your

Custody Order addressing expanded legal custody rights to include participation in:Evaluation process;IEP process;Access to educational records, including special

education records;Participation in behavioral therapy team

meetings;Notice of any disciplinary incidents, re-evaluation

efforts, IEP meetings, informal meetings, mediation or due process hearings.

Remain FlexibleInstead of fitting child into your schedule, you

need to change your schedule to accommodate the child’s schedule of therapies and/or specialized programming if you are the non-custodial parent.

This is especially the case if child is receiving home-based behavioral therapy, Occupational Therapy, Physical Therapy or Speech, Language Therapy or social skills training, or any other related service.

Working Out a Schedule

When working out a custody/visitation schedule, be aware of the schedule for specialized services the child is receiving, including the frequency and duration. The IEP will provide the frequency and duration, but not

the time of day or dates services will be provided.

Practice Tip: With the understanding that the schedule of specialized services can change from year to year, include or attach the child’s schedule of services to the Custody Order and request updated revisions to the schedule from the custodial parent.

United FrontPractice Tip: When participating

in meetings with the IU/school district, advise your parent-client to present a united front as much as possible to avoid giving the IU/school district ammunition for future litigation and causing more discord between the parents.

Vacations & HolidaysKeep in mind that deviations from the regular

schedule are difficult for children with autism.

Practice Tip: Involve the behavioral team when a vacation is planned ahead of time to start preparing the child for the change in routine. Share pictures of you, a vacation brochure

of vacation spot, etc. to familiarize child with what she/he will be exposed to.

Q & A