When Custody and Autism Intersect
When Custody and Autism Intersect
Liliana Yazno-Bartle, Esquire
THE LAW OFFICES OF CARYL ANDREA OBERMAN
607A North Easton Road
Willow Grove, PA 19090
August 1, 2012
What is Autism?
Autism is a lifelong developmental disability,
affecting both verbal and nonverbal
communication as well as social comprehension
and social interaction. It is not a mental illness,
per se, nor is it simply mental retardation
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
The Autism Society of America indicates
that autism now affects approximately 1
out of every 100 children born in the
What are the Core
Symptoms of Autism?
Social Interactions &
Problems developing nonverbal communication skills,
such as eye contact, facial expressions, and body posture.
Failure to establish friendships with peers.
Lack of interest in sharing enjoyment, interests, or
achievements with other people. (Rigid, inflexible
Lack of empathy. May have difficulty understanding
another person's feelings, such as pain or sorrow.
Verbal & Nonverbal
Delay in, or lack of, learning to talk.
Problems taking steps initiating and sustaining a
Stereotyped and repetitive use of language (or
Difficulty understanding another person’s
perspective (humor or sarcasm).
Limited Interests in
Activities or Play
Unusual focus on pieces of an object.
Preoccupation with certain topics.
Need for consistency and routines.
Stereotyped behaviors (body rocking and
Children with Autism to
Tend not to be resilient with bouncing back
after missed visitation period.
Tend to be sensitive to the environment and
become highly stressed as a result (sensory
integration issues, noise, distractions, smells).
Tend to have difficulty with transitions or
The best interest of the child is
expanded to include a parent that
understands and can care for the autistic
child in a way that demonstrates that
they can meet the increased time
commitment and other demands.
Methods of determining custody are altered and must be
carefully analyzed by Judges and attorneys when dealing
with children suffering from this disorder.
Capability and Competency of primary physical parent
Educational needs of the child
Safety of the child
Quality of the child’s education
Child’s developmental age
Quality of time involved in care giving
Nature of physical residence
Proximity to specialized school/services
ALL of the above must be looked at in more detail by the
Courts, and often times there must be a greater reliance on
Factors to Consider
Often, one parent in a custody proceeding fails to
acknowledge the existence or severity of a
disability, or cannot recognize signs of pain, illness
Is the parent willing to increase her/his education
about the needs of the child?
Does the parent have a history of being an
advocate for the child?
It is absolutely critical to minimize conflicts
between the parents with reference to therapy,
intervention, behavioral modification, and
Practice Tip: Use highly skilled professionals
in the field to assist in effectuating a
Practice Tip: Ask your parent-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.
What behavioral therapy, if any, is
anticipated in the future.
Shared Physical Custody
Shared physical custody is also affected when
dealing with an autistic child.
This type of arrangement 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
arrangement may not work.
Special Education &
Evaluation Report (ER) and Individualized Education
Non-custodial parent should become involved in the
ER and IEP process by becoming an active member of
the IEP team. This will serve to educate the noncustodial parent on what the child’s needs are.
Practice Tip: Advise your non-custodial parent to
notify the IU/school district of joint legal custody
status by sharing a copy of the Custody Order.
Practice Tip: Include language in your Custody
Order addressing expanded legal custody rights to
include participation in:
Access to educational records, including special
Participation in behavioral therapy team meetings;
Notice of any disciplinary incidents, re-evaluation
efforts, IEP meetings, informal meetings, mediation or
due process hearings.
Instead of fitting child into your schedule, you
need to change your schedule to accommodate the
child’s schedule of therapies and/or specialized
programming if you are the non-custodial parent.
This is especially the case if child is receiving
home-based behavioral therapy, Occupational
Therapy, Physical Therapy or Speech, Language
Therapy or social skills training, or any other
Working Out a Schedule
When working out a custody/visitation schedule,
be aware of the schedule for specialized services
the child is receiving, including the frequency and
The IEP will provide the frequency and duration, but not
the time of day or dates services will be provided.
Practice Tip: With the understanding that the
schedule of specialized services can change from
year to year, include or attach the child’s schedule
of services to the Custody Order and request
updated revisions to the schedule from the
When participating in
meetings with the IU/school district,
advise your parent-client to present a
united front as much as possible to avoid
giving the IU/school district ammunition
for future litigation and causing more
discord between the parents.
Vacations & Holidays
Keep in mind that deviations from the regular
schedule are difficult for children with autism.
Practice Tip: Involve the behavioral team
when a vacation is planned ahead of time to
start preparing the child for the change in
Share pictures of you, a vacation brochure of
vacation spot, etc. to familiarize child with
what she/he will be exposed to.