The steady increase of children being diagnosed with Autism Spectrum Disorder (ASD) has resulted in the unique needs of those families impacted playing a more prominent role in New York State’s family court system. With the growing frequency of such cases, a more thorough understanding of the particular concerns inherent in them has become crucial to ensuring that the best interests of the child are truly being met.
Divorces involving parents of children diagnosed with ASD present a wide range of unique considerations that often differ significantly from those cases involving neurotypical children. Among these are decisions surrounding custody arrangements, education, therapy and medical care, as well as particular nuances in the financial aspects of divorce.
At the forefront of these considerations are the ways in which having a child with ASD impacts custody considerations. As ASD contains a continuum of symptoms, from children who are non-verbal or have intellectual disabilities, to those on the other end of the spectrum who had historically been identified as having Asperger’s Syndrome, the diagnosis itself defies a one size fits all approach and requires the crafting of a schedule based on that child’s specific needs. For instance, many children with ASD are strongly averse to change, resulting in transitions causing them immense anxiety.
Unique challenges such as this need to be taken into account when crafting a custody arrangement that is in the best interests of that specific child. The boiler plate arrangements frequently employed in more standard custody matters will often prove to be wholly inadequate in addressing the needs of children with ASD which requires a more customized approach. Consistency and predictability for the child need to be stressed in such cases and taken into account when deciding everything from transition days and times to where the exchange of the child is to take place and who it is to be present. Additionally, children with ASD often require extensive therapies and treatments and devising a schedule that accommodates and ensures attendance at these appointments is pivotal to any custody arrangement.
A common issue in cases involving children with ASD is trying to determine the best way to express the unique concerns involved to an attorney for the child (AFC) or judge. AFC’s unfamiliar with the disorder may misinterpret a child’s behavior or statements leading them to advocate for a position that is not actually in the child’s best interest. Similarly, judges may be ill equipped to make such decisions without a proper understanding of the disorder and the many ways it can manifest. In these instances, it may be useful to make use of the child’s medical providers and/or expert witnesses to properly convey this information and aid in decision making.
There are also times where significant disagreements arise over the treatment of the child and sometimes even the very diagnosis. This makes the issue of medical decision-making authority crucial in such cases. Similarly, children with ASD have unique educational issues that must be considered and a determination of whether the parent’s views align will be crucial in determining decision making authority over the child’s Individualized Education Plan (IEP). Another factor that must be considered is whether the parents reside, or plan to reside in different school districts. The services offered from district to district can differ drastically and should be thoroughly considered in determining what is the best interest of the child. The districts offerings of before and afterschool care should also be explored if such services are required.
One major difference in cases involving children with an ASD diagnosis is that, pursuant to Family Court Act §413-b, child support payments for such children may continue until they reach the age of 26, as opposed to the usual termination upon reaching the age of 21. Additionally, under Domestic Relations Law Section 240(1-b)(f)(2), “the physical and emotional health of the child and his/her special needs and aptitudes” are to be considered in determining a deviation from the statutory amount of child support as determined by the Child Support Standards Act (CSSA).
The often complex medical, behavioral, and psychological needs of children with ASD can also lead to significant uncovered medical expenses which need to be accounted for in addition to considerations of who will be providing and paying for the child’s health insurance. There may also be factors present that can affect the amount and length of spousal maintenance and the determination of equitable distribution, especially if one parent has sacrificed, or will continue to sacrifice, their career and/or financial prospects to care for the child.
Families going through a divorce with a child diagnosed with ASD face a number of unique challenges and considerations beyond the normal complexities present in such situations. Having an understanding of the many ways in which the child’s specific situation can impact the outcome of these cases is crucial to being able to proper navigate an already difficult situation and in determining what is truly in the best interest of that child.
At the Colwell Law Group, our number one priority is always our clients. The members of our team have decades of combined experience in negotiating and trying family law cases. We are able to use our experience and our knowledge of the courts and New York family law to act as advocates for our clients. Our lawyers are dedicated to serving our clients’ best interests while also allowing them to feel heard and understood. We want to ensure that they trust us and understand why we do what we do. Colwell Law has numerous attorneys who are experienced in Family Law that can help put you at ease.
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