Arranging child custody following a separation is a fraught issue at the best of times. All the more so when a child has special health needs, such as Autism Spectrum Disorder (ASD). Here, the family lawyers at Goldwater, Dubé offer an insight on such child custody cases from a legal perspective.


How common is Autism Spectrum Disorder?

In the USA, 1 in 68 children is diagnosed with Autism Spectrum Disorder (ASD). The number of ASD diagnoses has increased by over 100% over the last 10 years, making it the fastest growing and most commonly diagnosed neurological disorder in Canada. Children with autism usually have problems with social interactions, difficulty with communication, and may display behaviour that is repetitive and restricted.

Although ASD is often referred to as a single disorder, people on the autism spectrum differ quite considerably from each other. Moreover, ASD is better described as a form of neurodiversity. While some cases are severe and require lifelong care, others are mild. Indeed, many people diagnosed with ASD go on to lead very happy and fulfilled lives.


Dealing with divorce when your child has ASD

Studies show that parents whose children have ASD suffer from more stress in general. According to research, parents whose child has been diagnosed with ASD are 10% more likely to separate. Although this is only a statistic, divorcing parents undergoing a separation need to prepare themselves for the following realities when their child is on the autism spectrum:

  • Changes in the routine of an ASD-diagnosed child are far more disruptive to their development. While all children benefit from stability, children with Autism often have particular needs when it comes to requiring stability. Instability in the routine of a child with autism can have a number of potential consequences, including setting them back in therapy. Parents would be wise to bear in mind that therapy is particularly impactful during childhood.

In an effort to respond effectively to the child’s needs given their ASD, parents going through a separation should be extra prepared to maintain the status quo with respect to custody. This includes maintaining the same school, treatment schedule, and caretakers, as well as ideally limiting sleepovers and vacations until the child is older.


Options for therapy for divorcing parents of autistic children

  • Applied Behavior Analysis (ABA) is the most empirically-validated, gold standard treatment paradigm for kids with ASD. It is most beneficial when the intervention is early (i.e. approximately 2 to 5 years old) and consistent, in the range of 20 hours per week.
  • ABA therapy can be expensive, easily thousands of dollars per month. It requires a 1-on-1 therapy structure.
  • While Ontario has a well-funded subsidy program for ABA therapy, Quebec has lagged behind and it can take up to a year for the government to recognize ASD diagnoses and two years for fund ABA.


Funding therapy for your child with Autism following a separation

  • In the context of a separation where finances are tighter because the parents are no longer living under one roof, parents need to prepare to somehow shoulder the costs of these special expenses with their ex and, in the absence of an agreement, be prepared to have a lawyer who can properly inform the Court about the essential need for these services.
  • Unfortunately, some lawyers may not be as attuned to the research on these matters and may not appreciate how critical they are to the child’s long-term functioning.

While much depends on the severity of the ASD, many kids with ASD have other related health challenges that require further special care. In fact, the best arrangement in such circumstances would be to have a team of professionals who can coordinate.


Other types of therapy for children with ASD

  • Besides an ABA specialist, an occupational therapist is often needed to develop motor skills and coordination, as well as a speech therapist for speech, and a specialized paediatrician for general health concerns. Sometimes a nutritionist is needed if the child is refusing certain foods to the extent that they are lacking nourishment.
  • Finally, these specialists needs to coordinate with the child’s school to develop an Individualized Education Plan. While both public and private schools can develop and follow an IEP, it’s best to find a school that has had particular experience with children on the Autism Spectrum. There are private schools designed for children with ASD, such as The Little Red Playhouse, but such schools can be expensive. All these particularities can add more special expenses to the mix.


Involving a lawyer to help you and your autistic child

  • Having a lawyer who can help you find available subsidies (whether from governmental or non-profit organizations), advocate on your child’s behalf to secure their place among the best specialists is in the field, and articulate the urgency of these services to a judge is key. This is especially true in cases where your ex may not be inclined to pay or neglects what is best for the child by choosing less able (and maybe less-expensive) specialists. Getting a lawyer on board can help make the process of a divorce less stressful and more successful for the whole family when your child has autism.


Contested Custody when your child is on the Autism Spectrum

  • When custody is contested following a separation, judges often feel more comfortable when there is a psychologist or a social worker who weighs in by issuing a detailed custody assessment. They generate a “psychosocial expertise” report based on their assessment of the child. Such expert reports weigh heavily in the judge’s decision-making as to custody. When a child with autism is involved, it can be a serious mistake to accept an expert without specialization in ASD or whose education on the issue might be dated. ASD is a fast-developing field. An expert who applies a generalized “special-needs child” approach to a child with ASD can be a bad fit since they might not take specifics into account.
  • Separating parents whose children have ASD need to show particular thoroughness  and good decision-making. They need to find particularly able counsel. The decisions you make, especially during the child’s early development, can have serious repercussions down the line. Finding the best people available to help you through this process is key and will pay dividends, particularly for your child’s future.
    Goldwater, Dubé is a family law firm based in Montreal, Quebec. We help families dealing with divorce, child custody, and the protection of assets. We have experience working with families who have autistic children having worked on child custody cases involving ASD. We work very closely with our clinical psychologist and litigation consultant, Dr. Goldwater-Adler, a professional who specialises in helping families dealing with ASD.  We treat all cases with compassion and expertise. We will put you and your loved ones first, protecting you and all that you hold dear.  Book a consultation with one of our expert family lawyers today.

Photos by Annie Spratt on Unsplash