Autism and Divorce

Divorce is never easy, especially when young children are involved. When a marriage ends, custody and visitation become much more complicated when addressing children with autism. The continued stress, as well as the issues surrounding the failure of the marriage, make custody a significant part of the decision-making process. There are many specific factors to be considered by the parents and the family court. When compared to a divorcing couple without an autistic child, these differences become clear and extremely important in maintaining the best interests of the child. The more general working knowledge that family courts gain, the better their judgments will be delivered. It is the affirmative duty of the court to protect these children who are unable to protect themselves.

New Jersey Family Court Considerations for Children with Autism

There has been a significant rise in autism in the past ten years. As with all children, each child is unique, but some have similar traits such as avoiding eye contact, no interest in people, or an inability to understand the concept of danger.

In a perfect world, family court judges would be experts in autism, understanding it as a profound and complex disability that dictates the lives of the parents of these children. The hope is that family court judges can be educated about the autistic child’s limited social interactions, early and intense intervention, APA (Applied Behavioral Analysis) done 30-40 hours a week, early diagnosis between 2-6 years old, constant home therapy reinforcement, consistency and structured time schedules, parenting stressors, costs and expenses not covered by insurance, and school districts specialized programs.

N. J.S 9:2-4 requires that family court judges inquire as to the fitness of the parents, the needs and safety of the child, and the quality and the continuity of the child’s education. Additionally, a judge may examine other factors regarding each parent, such as their role in the diagnosis, acceptance of the diagnosis, role in obtaining early intervention, ability to reinforce daily behavior and level of participation, history of self-help, willingness to advocate, ability to handle the daily stress of an autistic child, understanding of the utmost importance of early intervention, and quality of schooling.

Parenting Time Schedules for Families with Autistic Children in Voorhees and Throughout New Jersey

While equal shared legal and physical custody may be the ideal for certain children in certain families, an autistic child might be better off with just one parent having the bulk of time with the child, as a consistent environment is often crucial for their development. Even with a shared custody arrangement, parents need the ability to communicate effectively for the sake of an autistic child’s essential development. Under New Jersey law, the parent’s ability to agree, communicate and cooperate in matters of and concerning their child is crucial to a determination of joint legal custody. Choices need to be well thought out and decided without malice. If parents are unable to put their differences aside, and they continue to argue, the autistic child will suffer. In Nufrio v. Nufrio, 341 N.J.Super. 548 (2001), although not involving an autistic child, the Court ruled that parents must be able to communicate with one another to exercise “joint legal custody.”

Parenting time schedules need to be tailored around therapy sessions and school consistency. Summer vacations and every other weekend may work for a non-autistic child, for some autistic children this may even cause extreme anxiety, delay development and set back behavioral progress already established due to this change in scheduling. It is crucial that both parents, step-parents, siblings and any other persons involved in their life, be willing and able to continue reinforcing goals set by existing patterns.

Disputes Over Custody In Cases Involving Autistic Children in Camden County and Beyond

If a custodial parent wants to relocate out of state, pursuant to N.J.S. 9:2-2 and recent New Jersey case law, the Court must decide if the move is in the child’s best interest. In those cases involving autistic children, strong evidence proving specialized programs and services may outweigh the personal bonds established.

Expert witnesses and psychologists may be called when there is a dispute over custody, parenting time or other issues. The Court may also appoint a guardian ad litem during litigation, presenting independent expert assistance as well to further protect the interests of the child. This will be at the expense of the parents.

While financial issues surrounding children are generally addressed by New Jersey Child Support Guidelines, with autistic children, the court must look beyond the Guidelines. The costs associated with an autistic child and/or special needs child might be far more significant than the costs generally included within the New Jersey Child Support Guidelines. In cases involving the autistic and or special needs child, the court should be asked to recognize that “good cause” exists to modify and adjust the Guidelines amount of child support and/or to incorporate “recurring and predictable expenses” historically expended for autistic and/or special needs child.

Cases Involving Emancipation of an Autistic Child in New Jersey and the Necessity of Continued Support

Emancipation of an autistic child is also a more complicated issue; the presumptive age of emancipation recognized under New Jersey law should be challenged when an autistic and/or special needs child requires economic assistance into adulthood. While there are also programs to assist parents of adult special needs children, both parents should recognize that emancipation of a special needs child is a very different issue than the emancipation of their nondisabled peers. Under certain circumstances, child support may be required for the entire life of the child. Group homes and other assisted forms of living may also be utilized in appropriate cases.

Equitable distribution is decided as usual, although consideration is paid as to whether it is preferable for the custodial parent to stay in the home for the stability and superior services provided by that particular school district.

Insurance also plays an important role in an autistic child’s life, as they may require more assistance now and in the future. Health insurance is handled according to the New Jersey Child Support Guidelines, the custodial parent paying the first $250 in uncovered expenses for the year with the remaining balance divided between the parties in accordance with their incomes. Life insurance held by both parties can be ordered by the court. Without the suitable amount of life insurance, one parent’s death can lead to catastrophe for the other. The need for a trust fund, estate planning, and the proper beneficiary are important.

Divorcing Parents of an Autistic Child and Considerations on How Their Decisions Impact Their Special Needs Children

The need for flexibility and creativity, along with continuity of the child’s educational and emotional welfare should accordingly be recognized by divorcing parents of an autistic and/or special needs child. Divorcing parents of a special needs child should accordingly consult with a special needs attorney as well as their matrimonial attorney so that the parties’ decisions in the context of their divorce do not adversely impact their special needs children moving forward.

When You are Looking for a Lawyer with Integrity & Compassion, Contact the Legal Professionals at Davis & Mendelson for a Consultation about Your Case

The attorneys at Law Firm of Davis & Mendelson practice both matrimonial law and special education law and, as such, are uniquely qualified to handle the needs of divorcing parents and their autistic children. We’ve represented New Jersey school districts, parents of special needs students throughout the State of New Jersey, and divorcing parents of special needs children throughout the State of New Jersey; our knowledge of and empathy for the difficulties of both a divorce and raising special needs children have and will continue to enhance the quality and compassion of the legal representation we have and will continue to provide to both our matrimonial clients and special needs clients.

Contact us today for a consultation. We will listen and get a full understanding of your situation. We will answer all your questions, and provide cost-effective, sound legal solutions. Allow us to advise you about your legal rights and options. We are committed to protecting both your interests and the interests of your children. Call now at 866-560-9512 or fill out our online contact form to get started on your case today.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney/client relationship. If you are seeking legal advice, please contact our law firm directly.