Raising a child on the autism spectrum exposes a family to a whole host of stressors on top of the stressors normally associated with parenting. These stressors can overwhelm a couple and lead to marital dissatisfaction. In fact, there is some empirical evidence that families with a child on the autism spectrum are more likely to divorce than families with neurotypical children or children with other types of disabilities (Hartley, et al., 2010; Senechal & des Rivieres-Pigeon, 2009).
The goal of parents seeking the divorce should be to minimize the conflict, stress, and uncertainty for their children. If the parents can work together cooperatively and seek an amicable divorce, then they should seek an attorney who specializes in divorce mediation. This type of attorney works with both parents to arrange a mutually acceptable agreement in terms of custody, visitation, and child support. Recent research indicates families who used mediation have lower levels of on-going conflict long after the finalization of the divorce (Sbarra & Emery, 2008).
The most common arguments parents have are over child rearing, sex, and money (Hitti, 2005). Many of these arguments are identifying potential parental impairments in executive functioning or social skills. There is a great deal of evidence that autism is a genetically based disorder (Caglayan, 2010). It is possible that one or even both spouses may have an undiagnosed autism spectrum disorder or an associated condition such as attention deficit disorder (ADD) (Bolte, Knecht & Poustka, 2007). If the parents can reframe their spouse’s objectionable behaviors to perhaps signs of disability rather than willful behaviors, then this may lessen some of the acrimony associated with a divorce.
There is very little case law associated with custody cases where autism was a central issue. As with any other determination of custody, the sole concern, where a special needs child is involved, is a resolution that will best serve the interests of the child by promoting the children’s welfare, happiness, and optimum development (Eschbach v. Eschbach, 1982). Among the factors a court will usually consider to ascertain the interests of the child are the:
- Parenting ability and relative fitness of each parent;
- Love, affection, and nurturing given by each party to the child;
- Emotional bond between the child and each parent;
- Willingness and ability of a parent to put the child’s needs ahead their own;
- Stability of the proposed custodial residence;
- Ability of a parent to provide for the child’s emotional and intellectual development;
- Ability of each party to provide the child with food, clothing, housing, and medical care;
- Willingness and ability of each party to facilitate and encourage a close and optimum relationship between the children and the other party (New York Domestic Relations Law § 240, 2003).
The courts do not have special rules when dealing with custody in the cases where there is a special needs child in the home. The focus on the above factors are made “…in light of the totality of the circumstances, including each parent’s past performance, relative fitness and their abilities to maintain a stable home and provide for the child’s special needs (Tennant v. Philpot, 2010). When a special needs child is involved, the courts decisions are grounded in the above factors, “including the parties’ respective home environments, behavior toward each other and the child, parenting skills with particular reference to the child’s special needs, care of the child over his lifetime, willingness and ability to foster a relationship between the child and the other party…” (Lionel E. v. Shaquana, 2010).
The most common custody arrangement is one in which the children move back and forth between the homes of the parents. This model has been considered outdated and not supported by empirical literature according to some authors (Kelly, 2007). In order to reduce anxiety among the children, it is important to give them plenty of advanced warning of the pending change in the family structure. The main message the children need to hear is that the divorce is not their fault. Often children blame themselves for their parents’ divorce. To further help reduce anxiety and give the children a sense of control, parents can engage the children in helping select a new place to live, which new bedroom will be theirs, and help select decorations for the new home.
Providing a sense of predictability, stability, and structure will be critical in helping a child on the autism spectrum cope with the change in family structure. One easy intervention is to provide the school-aged child with a copy of the custody/visitation schedule in a visual form. A copy of a calendar for the month with color coded weeks indicating at which parent’s home the child will stay can be placed in the child’s binder. Additional copies can be posted on the refrigerator doors at the respective parent’s homes. By providing a copy of the custody schedule in an understandable form to the child, parents will help the child gain a sense of predictability and help reduce anxiety.
Continuing with previously established family rituals can also help increase the child’s sense predictability, stability, and structure. Family dinners with all the family members in the new configuration at the same time as was previously held will help. Bedtimes and associated rituals (e.g. bathing, reading a story, etc.) should be kept the same as prior to the separation if possible. The children should also continue their extracurricular activities if at all possible. Cancelling the children’s extracurricular activities will compound their sense of loss and will remove them from their support network.
Instituting new structure and rituals can also help the family cope with the transition of a divorce. Covey (1997) describes the concept of family meetings where family members can review the week, celebrate successes and acknowledge accomplishments, as well as discuss issues and develop mutually acceptable solutions. The institution of this ritual not only provides the family with ritual and routine, but also serves to teach and model pro-social behaviors such as listening, waiting one’s turn to speak, and compromising. Covey (1997) also champions the concept of having one on one time with each child. One on one time is where the parent spends alone time with each of the children individually in an activity chosen by the child. The one on one time is done on a weekly basis. This is especially important for the siblings not on the autism spectrum because they often feel that family life revolves around their sibling with the disability.
Prior to any disagreements, if the parents can establish a mechanism to resolve conflicts, this will help decrease tensions and improves the long-term outcomes for the children. One mechanism to consider is hiring a family therapist who is acceptable to both parties and is trained in working with families who have a child on the autism spectrum. The professional should be neutral and should be considered as the last word on helping decide critical issues. Prior to engaging this professional both parties should agree, in writing, that this person will truly be neutral and be used only for mediating conflict, i.e., both parties must agree not to subpoena this person in a custody dispute. The family therapist can work with the family in a variety of constellations depending on the family’s current need.
Unfortunately, some families are not able to come to an amicable or mutually acceptable dissolution of the marriage. The most frequent sticking point revolves around the education and medical treatment of the child with the ASD. Often one parent embraces the notion of the child having an ASD while the other rejects the notion wholesale. This is particularly true when the child is “high functioning” and has a diagnosis of PDD-NOS or Asperger syndrome. The parent who is resistant to the label may focus on only one aspect of the child’s disorder or agree to a more socially acceptable label such as attention deficit disorder (ADD). This can lead to educational and behavioral interventions that do not address the core issue with ASDs which is social in nature.
Should the custody dispute devolve into an adversarial scenario, then a forensic custody evaluation may be ordered by the court. The court will then appoint a guardian ad Litem or law guardian on behalf of the children. This attorney or other professional’s role is to protect the interests of the children separately from the interests of the parents. Both the guardian ad Litem and the forensic evaluator ought to be sensitive to how the children’s social disability will affect their ability to understand and answer questions. They need to be aware of the concrete and literal nature of some individuals on the autism spectrum. They also need to be aware of how some individuals on the spectrum may be scripted. They or the family members may inadvertently or even intentionally script the individual on the spectrum to give answers that would be more favorable to one parent or another during the custody proceedings. Furthermore, legal professionals should be sensitive to the fact that ASDs are inheritable and consequently, one or both parents may have an undiagnosed ASD or features of a co-morbid disorder associated with ASDs. A reasonable accommodation under the Americans with Disabilities Act of 1990 would suggest that forensic evaluators, and guardians ad Litem be trained in dealing with families where an ASD is present.
Who should be granted custody? The best long-term outcomes for children of divorce occur when there is a minimal amount of conflict. Children do the best when their parents protect them from the daily machinations of the legal proceedings. If the parents can truly co-parent in a cooperative manner and not attempt to micromanage what occurs in the ex-spouse’s new home, then children are less likely to suffer serious long-term effects from the divorce (Ahrons, 2007). If the divorce is high in conflict, then custody should be granted to the parent who can incorporate the developmental needs of all their children into account when making decisions. This person needs to be cooperative and willing to learn new parenting techniques. He or she will need to know that children on the autism spectrum have unique needs, and what educational and behavioral interventions are empirically indicated to fill those needs. Finally, custody ought to be awarded to the parent who can provide all of the children with a sense of predictability, stability, and security.
Dr. Ernst VanBergeijk, is the Associate Dean and Executive Director of New York Institute of Technology’s Vocational Independence Program. Ron Hollander, Esq. is an attorney who specializes in matrimonial and real estate law.
Ahrons, C.R. (2007). Family ties after divorce: long-term implications for children. Family Process. 46(1):53-65.
Bolte, S., Knecht, S., and Poustka F. (2007). A case-control study of personality style and psychopathology in parents of subjects with autism. Journal of Autism & Developmental Disorders. 37(2):243-50
Caglayan, A.O. (2010). Genetic causes of syndromic and non-syndromic autism. Developmental Medicine & Child Neurology. 52(2):130-8.
Covey, S. R. (1997). Seven habits of highly effective families. Golden Books: New York.
Hartley S.L., Barker, E.T., Seltzer, M.M., Floyd, F., Greenberg, J., Orsmond, G., and Bolt, D. (2010). The relative risk and timing of divorce in families of children with an autism spectrum disorder. Journal of Family Psychology. 24(4):449-57.
Hitti, M. (2005). Parents’ arguments hurt kids, marriage: Fighting parents, misbehaving children especially hard for stepfamilies. Retrieved from http://www.webmd.com/parenting/news/20050210/parents-arguments-hurt-kids-marriage. March 7, 2011.
Kelly, J.B. (2007). Children’s living arrangements following separation and divorce: insights from empirical and clinical research. Family Process. 46(1):35-52.
Lionel E. v. Shaquana R.B. 73 A.D.3d 434, 901 N.Y.S.2d 181 N.Y.A.D. 1 Dept.,(2010).
Sbarra, D. A., and Emery, R. E. (2008). Deeper into divorce: using actor-partner analyses to explore systemic differences in coparenting conflict following custody dispute resolution. Journal of Family Psychology. 22(1):144-52.
Tennant v. Philpot 77 A.D.3d 1086, 909 N.Y.S.2d 225, 2010