Autism in Family Courts

ASD is a developmental disability that has a wide range of symptoms. The characteristics of autism present serious challenges to children and their families in all areas of their lives — including, but not limited to, living arrangements, eating habits and social interactions. Children with ASD generally have limitations with both verbal and nonverbal communication as well as issues with social comprehension and interaction, and an inability to tolerate transitions or sensory stimuli in their environment. ASD children can range from high functioning to nonfunctioning, and their need for consistency is often paramount in their behavior.

It is important to understand that no child with autism is the same; each has his or her unique characteristics, and therefore, each child has to be assessed on a case-by-case basis.

Autism Issues That Typically Come Before The Court

We will use Pennsylvania as an example. In a custody matter, pursuant to 23 Pa.C.S.A. Section 5328, the court is required to weigh 16 factors to determine what is in the best interest of the child. In court, judges hear snippets of a case that an attorney may have spent hours preparing. Accordingly, the attorneys have to ensure that they address the relative custody factors, specifically factors 3, 4, 9, 10 and 13, which address parenting duties, consistency and conflict.

In high-conflict cases with ASD children, like divorces or custody disputes, it is common that the parents do not want to cooperate with each other and refuse to identify a lead parent (a decision-maker) in charge of how to raise the child. This parent is more likely to coordinate special services for the child, doctors' appointments, transportation and therapy. The court will want to know who this decision-maker is, which parent has the most stable household, and which parent can provide consistency. Conflict occurs when the parents cannot agree on plans on a number of issues for their child. These include, but are not limited to: discipline, therapeutic treatments and their frequency; medication and dosage; diets; education (traditional classrooms or special needs classes); and routines (how often the child switches between homes and parents).

Other issues that may arise include introducing new “significant others,” blending step children and/or relocating to new residences. These changes may be exacerbated when there is no advanced notice of the change to the other parent or consultations with the child's service providers.

Parent, Judge and Attorney Roles

The people best suited to understand the needs of children are their parents. However, when the parents are at odds, and the child with ASD cannot communicate his or her feelings, the roles of the attorneys and judges change dramatically, and they are left to determine what's best for the child — with or without the appropriate education on ASD and the child's needs.

Lawyers are hired to advocate on behalf of their clients, but they may not be aware that what works for the traditional child does not work for a child with ASD. A shared physical custody schedule, for example, would not be the best solution for a child with autism who does not do well with inconsistent schedules.

In a case like this, what is the role of the lawyer? Should a lawyer, in compliance with Rule 2.1 of Pennsylvania's Rules of Professional Conduct, act as an adviser and explain that a judge may give greater weight to an autism diagnosis — even when weighing the factors in this way may not favor the parent who is that lawyer's client? Or should a lawyer act with zeal in advocating on the client's behalf regardless of the child's need, as provided in the explanatory comment for Rule 1.3? Should the attorney counsel the client on the difference between the needs of an autistic child and a traditional child? How can an attorney give any advice to a client if he or she does not understand the needs of the child?

Regardless of the role the attorney is playing, the attorney's representation is all-encompassing, and he or she has a duty to present a complete record, which will require knowledge of the ASD child's needs. As a representative of the client, it is incumbent upon the lawyer to understand all of these issues so that he or she can elicit this information during testimony and prepare the client to answer these questions. In complex cases, the lawyer can seek expert advice or interview the child's service providers for a better understanding of the child's need.

If there is no agreement between the parents, it will be the judge's job to weigh the facts to determine what is in the child's best interest, and if the lawyer fails to present a complete picture, the judge may not have enough information; consequently, the welfare of the ASD child may be severely prejudiced.

Addressing Autism: The Courts

How does a judge, who does not understand what autism is, or has not presided over a case with an ASD child, address these complex issues? It is difficult, especially in cases where lawyers are not prepared themselves. With or without an educated advocate, the judge needs to work with the parents and the lawyers to determine what is best for the child. Some strategies that have been used in the Montgomery County, PA, courts, include:

1. Proactive custody orders — These can include provisions directing the parties to attend co-parenting counseling and to follow all recommendations of the counselor. Courts may also direct parents to meet with treatment providers together so they are receiving the same information regarding treatment or therapies.

2. Communication — Courts may direct parents to discuss and agree on consistent regimens to ensure that medication is properly dispensed, that the child maintains a consistent diet in both households and that the parties agree to a consistent method of discipline. Our courts have required parties to exchange logs tracking diet, behavior and medication. The court can order parties to purchase a computer calendar and scheduling program with an email component for parties to list all medical and therapeutic appointments, note the time and dosage of medication, or list the foods the child ate in their respective custody. In some cases, courts may authorize the school to administer medication if one parent is not compliant. Courts may also order the parties to give advance notice of any major changes to their lifestyles to assist the child with the transition. In some cases, the court may even grant sole legal custody to the caretaker parent where the other parent is disruptive and refuses to communicate or cooperate.

If courts order parties to meet their child's ASD needs and to communicate openly, there may be a decrease in a rush to negative judgment about the other party's parenting skills. Moreover, parents have to learn to discuss and agree upon strategies and treatments, and to maintain ongoing communication with therapists and other treatment providers. Failure to understand an ASD child's needs may have dire consequences, especially if the child is unable to voice his/her needs. It is essential that parents, lawyers and judges work together for the best interest of ASD children.

Understanding the Issue

The key to understanding autism is in knowing that a diagnosis of autism impacts each individual and his or her family differently. No autistic child is the same. It is important for both the bench and the bar to know that each child with ASD has unique characteristics, and therefore, each needs to be assessed on a case-by-case basis. Courts should be prepared to work closely with the parents and attorneys, but should also pay close attention to the lifestyle that has been created for the child and the challenges that may arise in family court. While resources are limited in supporting and learning about this expanding population, the bench and the bar need to work with the community to become more prepared in successfully assessing these type of cases and to address the best interest of the child involved.

*****
Kelly C. Wall is administrative judge of Family Court for the Montgomery (PA) County Court of Common Pleas. She currently sits on the board of NHS, a provider of community-based, non-profit education and human services. Karen Markle is executive vice president of Education and Autism Services at NHS. This article also appeared in The Legal Intelligencer, an ALM sibling publication of this newsletter.

The latest concern in family courts is a result of the sharp increase in the number of children who are diagnosed with Autism Spectrum Disorder (ASD), which has revealed that our courts are not prepared to handle cases with ASD individuals and families.

Unfortunately, with the rapidly increasing number of children diagnosed with ASD, it is a sure bet that the number of children exposed to the court system also will continue to climb, especially in family courts where custody agreements are created by the courts. While some communities are often under-resourced and cannot support the education and training for this expanding population, it is up to the bench and the bar to take the lead in learning about this growing population and its impact in the court.

Autism Spectrum Disorder

ASD is a developmental disability that has a wide range of symptoms. The characteristics of autism present serious challenges to children and their families in all areas of their lives — including, but not limited to, living arrangements, eating habits and social interactions. Children with ASD generally have limitations with both verbal and nonverbal communication as well as issues with social comprehension and interaction, and an inability to tolerate transitions or sensory stimuli in their environment. ASD children can range from high functioning to nonfunctioning, and their need for consistency is often paramount in their behavior.

It is important to understand that no child with autism is the same; each has his or her unique characteristics, and therefore, each child has to be assessed on a case-by-case basis.

Autism Issues That Typically Come Before The Court

We will use Pennsylvania as an example. In a custody matter, pursuant to 23 Pa.C.S.A. Section 5328, the court is required to weigh 16 factors to determine what is in the best interest of the child. In court, judges hear snippets of a case that an attorney may have spent hours preparing. Accordingly, the attorneys have to ensure that they address the relative custody factors, specifically factors 3, 4, 9, 10 and 13, which address parenting duties, consistency and conflict.

In high-conflict cases with ASD children, like divorces or custody disputes, it is common that the parents do not want to cooperate with each other and refuse to identify a lead parent (a decision-maker) in charge of how to raise the child. This parent is more likely to coordinate special services for the child, doctors' appointments, transportation and therapy. The court will want to know who this decision-maker is, which parent has the most stable household, and which parent can provide consistency. Conflict occurs when the parents cannot agree on plans on a number of issues for their child. These include, but are not limited to: discipline, therapeutic treatments and their frequency; medication and dosage; diets; education (traditional classrooms or special needs classes); and routines (how often the child switches between homes and parents).

Other issues that may arise include introducing new “significant others,” blending step children and/or relocating to new residences. These changes may be exacerbated when there is no advanced notice of the change to the other parent or consultations with the child's service providers.

Parent, Judge and Attorney Roles

The people best suited to understand the needs of children are their parents. However, when the parents are at odds, and the child with ASD cannot communicate his or her feelings, the roles of the attorneys and judges change dramatically, and they are left to determine what's best for the child — with or without the appropriate education on ASD and the child's needs.

Lawyers are hired to advocate on behalf of their clients, but they may not be aware that what works for the traditional child does not work for a child with ASD. A shared physical custody schedule, for example, would not be the best solution for a child with autism who does not do well with inconsistent schedules.

In a case like this, what is the role of the lawyer? Should a lawyer, in compliance with Rule 2.1 of Pennsylvania's Rules of Professional Conduct, act as an adviser and explain that a judge may give greater weight to an autism diagnosis — even when weighing the factors in this way may not favor the parent who is that lawyer's client? Or should a lawyer act with zeal in advocating on the client's behalf regardless of the child's need, as provided in the explanatory comment for Rule 1.3? Should the attorney counsel the client on the difference between the needs of an autistic child and a traditional child? How can an attorney give any advice to a client if he or she does not understand the needs of the child?

Regardless of the role the attorney is playing, the attorney's representation is all-encompassing, and he or she has a duty to present a complete record, which will require knowledge of the ASD child's needs. As a representative of the client, it is incumbent upon the lawyer to understand all of these issues so that he or she can elicit this information during testimony and prepare the client to answer these questions. In complex cases, the lawyer can seek expert advice or interview the child's service providers for a better understanding of the child's need.

If there is no agreement between the parents, it will be the judge's job to weigh the facts to determine what is in the child's best interest, and if the lawyer fails to present a complete picture, the judge may not have enough information; consequently, the welfare of the ASD child may be severely prejudiced.

Addressing Autism: The Courts

How does a judge, who does not understand what autism is, or has not presided over a case with an ASD child, address these complex issues? It is difficult, especially in cases where lawyers are not prepared themselves. With or without an educated advocate, the judge needs to work with the parents and the lawyers to determine what is best for the child. Some strategies that have been used in the Montgomery County, PA, courts, include:

1. Proactive custody orders — These can include provisions directing the parties to attend co-parenting counseling and to follow all recommendations of the counselor. Courts may also direct parents to meet with treatment providers together so they are receiving the same information regarding treatment or therapies.

2. Communication — Courts may direct parents to discuss and agree on consistent regimens to ensure that medication is properly dispensed, that the child maintains a consistent diet in both households and that the parties agree to a consistent method of discipline. Our courts have required parties to exchange logs tracking diet, behavior and medication. The court can order parties to purchase a computer calendar and scheduling program with an email component for parties to list all medical and therapeutic appointments, note the time and dosage of medication, or list the foods the child ate in their respective custody. In some cases, courts may authorize the school to administer medication if one parent is not compliant. Courts may also order the parties to give advance notice of any major changes to their lifestyles to assist the child with the transition. In some cases, the court may even grant sole legal custody to the caretaker parent where the other parent is disruptive and refuses to communicate or cooperate.

If courts order parties to meet their child's ASD needs and to communicate openly, there may be a decrease in a rush to negative judgment about the other party's parenting skills. Moreover, parents have to learn to discuss and agree upon strategies and treatments, and to maintain ongoing communication with therapists and other treatment providers. Failure to understand an ASD child's needs may have dire consequences, especially if the child is unable to voice his/her needs. It is essential that parents, lawyers and judges work together for the best interest of ASD children.

Understanding the Issue

The key to understanding autism is in knowing that a diagnosis of autism impacts each individual and his or her family differently. No autistic child is the same. It is important for both the bench and the bar to know that each child with ASD has unique characteristics, and therefore, each needs to be assessed on a case-by-case basis. Courts should be prepared to work closely with the parents and attorneys, but should also pay close attention to the lifestyle that has been created for the child and the challenges that may arise in family court. While resources are limited in supporting and learning about this expanding population, the bench and the bar need to work with the community to become more prepared in successfully assessing these type of cases and to address the best interest of the child involved.

*****
Kelly C. Wall is administrative judge of Family Court for the Montgomery (PA) County Court of Common Pleas. She currently sits on the board of NHS, a provider of community-based, non-profit education and human services. Karen Markle is executive vice president of Education and Autism Services at NHS. This article also appeared in The Legal Intelligencer, an ALM sibling publication of this newsletter.