THE EFFECT OF SPECIAL NEEDS CHILDREN AND AUTISM ON DIVORCE
Much has been written and discussed of late with regard to the faltering economy and the impact on couples seeking divorce. I have found in my more than thirty years of practice that while the economy has certainly been a factor, people choose to terminate a relationship regardless of the state of the economy. Obviously, the impact of valuation of assets, alimony, and child support is affected by the housing market and the falling stock market.
However, an issue not often discussed or reported is the effect on a marriage and divorce of a special needs/autistic child. The rate of autism and the rate of divorce appear to be increasing annually. I have found that Courts are often confronted now with issues concerning autistic children or children on the autism spectrum. These issues demand special attention by the Courts and are often misunderstood by attorneys as well.
I have found that the stress of an ASD child (Autism Spectrum Disorder) often is the straw that breaks the camel’s back with regard to marriages that are already experiencing considerable stress.
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. Autism 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.
When parties are in marital discord and conflict, the demand of an autistic child or a special needs child often increases stress, hostilities, and demands in a significant fashion. Whether the child has speech difficulties or is unable to speak, to a child who engages in an obsessive compulsive disorder, the demand upon the parents are manifest. The requirement of parents for increased supervision of children on the autism spectrum is also tremendously increased. Hence, there are numerous challenging aspects to children who suffer from this disorder, and as a result, the pressures and demands on parents make a difficult matter even worse.
Parents who are undergoing marital discord are wise to immediately engage professional assistance and structure a plan to share the responsibilities of caring for children with developmental disorders. If they are unable to do so, the issues in any subsequent divorce become even more difficult. Custody becomes not simply a matter of what is in the best interest of the child, but which parent understands and can care for the autistic child in a fashion that demonstrates that they can meet the hugely increased time and other demands. Interestingly, while professionals often oversee and administer the therapy for the child, it is the parents and other family members who must learn how to reinforce the therapist’s plan. This is where I have seen a tremendous breakdown between the parents. Hence, this can often accelerate the demise of the marriage.
It is not uncommon for a parent to be required to leave or modify their career as a result of dealing with an autistic or developmentally disabled child. This has a direct impact on the income of the family and relates directly to issues of alimony and child support. There are often additional costs and expenses, whether it be therapy, special education, or additional professional support that again increases the strain between parents, and requires attorneys to structure their cases far differently than a case without such issues.
Methods of determining custody are tremendously altered and must be much more carefully analyzed by Judges and attorneys when dealing with children suffering from this disorder. Which parent will be the primary residential custodian of the child? The criteria of the fitness of the parents, needs of the child, the safety of the child, and the quality of the child’s education, now must be looked at in far more detail by the Courts, and often times there must be a greater reliance upon professionals.
I have often found that one parent in a divorce proceeding either fails to acknowledge the existence of a problem or the severity of that problem. This is a factor that is absolutely critical to take into consideration by the Court. A parent’s willingness to increase his or her education about the needs of the child is also required, as is the parent’s history of being an advocate for the child. I often ask my 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, and what behavioral therapy, if any, is anticipated in the future. If a parent cannot answer these basic questions, then it is unlikely that they should be the primary custodial parent of the child.
Shared legal custody is also greatly affected when dealing with an autistic child. While I am a tremendous proponent of parents sharing time with their children as equally as possible, this 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 custodial arrangement may simply not work.
A Court must also carefully structure how decisions are made when dealing with children with developmental disorders and autism. It is absolutely critical to minimize conflicts between the parents with reference to therapy, intervention, behavioral modification, and structure. I strongly urge that parents, particularly when dealing in divorce litigation, utilize highly skilled professionals in the field to assist them in effectuating a plan.
IMPACT OF COSTS AND EXPENSES
The New Jersey Child Support Guidelines set forth a schedule by which child support is set. However, because they are guidelines, autistic children may present special circumstances that will cause the Court to deviate from those guidelines in the face of mounting extraordinary costs such as set forth above. In addition, there may be private school tuition for an autistic child, and special additional care may be required at home. These are all factors the Court must consider when giving a child support award in these circumstances.
Alimony may also be impacted. For example, a parent who has the ability to get back into the workforce under normal circumstances may have that opportunity removed from them as a result of having an autistic child at home. Therefore, while it may normally not be considered reasonable for a parent who has been home with a child not to get back into the workforce and utilize outside sources for childcare, parents of autistic children may not have that option simply because it may not be in the child’s best interest. Again, consistency for the child is key. This, in turn, therefore creates yet an additional financial pressure for both parties when divorcing.
There are numerous other issues that are impacted. These include whether or not the former marital home, which had been the residence of the child, should be sold or not; whether it is possible to establish a fund for the child going forward; and even whether or not a 50/50 distribution for equitable distribution purposes of assets is reasonable when one parent has the lion’s share of the responsibility of caring for an autistic child.
There is no question that Family Court Judges are now faced with more than the normal criteria that they would find in most custody/parenting time cases. The ability of an attorney to adequately assist the Court in understanding a specific condition is critical.
It is strongly urged that when families with special needs children are divorcing, that they are satisfied that the attorney whom they choose to represent them is fully versed in these issues.
Richard C. Klein, ESQ.
Cooper Levenson, Attorneys at Law
1415 Marlton Pike (Route 70) East
Cherry Hill Plaza – Suite 600
Cherry Hill, NJ 08034
Direct Dial: (856) 857-5526
Direct Fax: (856) 857-5527