What Family Courts Must Understand About Children with ASD

The prevalence of autism spectrum disorders has increased dramatically over the past half century. In the 1960s, the condition was considered rare, occurring in one of every 2,000 children. Today, its prevalence in the U.S. is about 1 in 59. We do not yet know all the factors that might explain this sharp increase.

Changes in how autism is defined means more children are eligible for diagnosis. Efforts in professional communities in the past 15 years have improved our understanding of ASD. More children are being evaluated, and there are more avenues of support for children and their families. Subsequently, professionals working in family law courts have more exposure to children with ASD as well.

Autism Spectrum Disorders in Family Law

In the family court system, ASD case law is rooted in family law concerning children with special needs. The paramount issue is parents’ capacity to provide the extra care required by the child. Specific to children ASD, the key issue at hand is the child’s need for consistency and routine.

In my experience, courts understand that children on the spectrum are unique, and that their needs are just as unique as they are. The judiciary is challenged to grasp the entire scope of what co-parenting a child with ASD entails. After all, ASD doesn’t fit neatly in a box; and any materials they encounter in judge’s school likely provide only a superficial understanding of what “best interests” look like for a child on the spectrum.

Generally, and rightfully so, judicial officers tend to defer to expert opinions when hearing cases that involve a child on the spectrum. Absent a 730 evaluation, usually what gets the court’s attention is the most knowledgeable attorney on the subject.

One major challenge for attorneys is that judicial officers often work on the assumption that parents come into the courtroom with an agenda of their own, and this agenda is not necessarily in line with what is in the child’s best interest. It is a completely understandable assumption because the judiciary deals with parents of neurotypical children often squabbling over parenting time and subsequent levels of support.

What Judicial Officers Should Expect from a Family Law Attorney

Given the stance of the court, it is important to present factual and objective evidence that speaks the needs of a child on the spectrum. Specifically, that means establishing with the court the importance of a routine and the severity of what occurs when there is deviation from that routine. Collecting testimony from professionals that work with the child is a recommended practice: an occupational therapist and/or behavioral therapist are some of the two most commonly involved with children on the spectrum.

With respect to the case-specific nature of co-parenting children on the spectrum, attorneys might feel compelled to put as much information on the record as possible. That is not always the best approach. Expect both parties to be selective and carefully direct evidence to the issues at hand—establishing the routine, and how each parent supports that routine—to avoid flooding the court with impertinent information.

An attorney representing the primary caregiver typically presents evidence that objectively demonstrates how critical it is to uphold the routine when co-parenting a child on the spectrum. That involves going into detail about the routine and showing how severe the effects of disrupting that routine can be on the child.

Expect the noncustodial parent that wants more parenting time to also place the routine first and foremost. For this side, the goal becomes creating opportunities for the noncustodial parent to become part of that routine. Objectively show that it is in best interest of that child for the noncustodial parent to become part of the new normal, so that he may exercise visitation on his way to becoming an equal parent.

Examples of Timeshare Conflicts

Like many co-parenting breakdowns that the courts are asked to decide upon, timeshare issues often take center stage. With respect to co-parenting a child with ASD, a just timeshare balances two ideas: 1.  frequent and continuing contact with both parents is beneficial for the child; and 2. The extent to which either parent successfully establishes and upholds a routine that works.

Timeshare issues come in every shape and form, here are a few illustrative examples.

Parent exchanges – Unlike in a co-parenting situation with a neurotypical child, just because a parent is available for an exchange does not mean it is the best time for it to happen. Take into consideration if a child pickup occurs after a therapy session because it is convenient for the noncustodial parent. In this instance, the child needs time to decompress after therapy, and having the exchange complicates that decompression time. Without decompression time, therapy becomes less effective as time progresses. The child-focused decision here might involve adding a period of decompression time to the parenting plan before a parent exchange where applicable.

Car rides and accounting for traffic – If parents live a considerable distance apart, exchanges might become problematic for a child with ASD. Consider if the child has endured a full day of school, therapy, and a long drive at the end of the day compounds stimuli enough to push the child to the brink of a physical meltdown—the child then has a tantrum in the car, and is unable to fall asleep at bedtime. Having an exchange during Friday rush hour, albeit convenient for both parents, does not fit the child’s routine.

Transitions to and from school – Often children on the spectrum experience what we would consider illogical anxiety over deviations from the routine. Because of that, it is extra challenging for the noncustodial parent to do a pickup from school without the child incurring a lot of stress. It might be easier for that pickup from home. For the child, just having 20 minutes at home to drink juice and eat an apple is a huge difference maker. After that he's all set for transitioning into time with the other parent.

Final Thoughts

Custody and visitation issues that involve children with ASD must focus on the child’s routine. The best interest of the child hinges on that routine. It is up to the parties to place that routine front and center in the time share agreement. Judicial officers should expect to hear testimony that objectively defines the important facets of that routine and recognize the capacity of both parents to execute it.​

About the Author

Jeremy N. Roark is a family law attorney experienced in handling custody and visitation cases involving children with autism spectrum disorder. A father of a young child on the spectrum, Mr. Roark is well respected among judicial officials in Southern California as a source of authority on the subject.

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