While there is no definitive study that firmly establishes the precise correlation between raising a special needs child and divorce rates, there is little argument that families who deal with special needs children experience immeasurable stress. The stress of parenting a special needs child with a diagnosis of autism is considerable, and can strain even the most functional marriages, often to a point beyond repair. The ultimate result then, of many marriages involving children with autism, is dissolution.
The CDC estimates that 1 in 88 children is currently diagnosed with Autism Spectrum Disorder, consequently divorces involving one or more autistic children represent a substantial number of family law cases.1 A diagnosis of autism for the children involved will change the face of nearly every aspect of a divorce, from child support, to visitation schedules, to custodial responsibilities. There are unique considerations and inevitable complications in a dissolution involving children with autism.
Custody. Autism will play a commanding role in a divorce, beginning with a custody determination. Meeting the needs of an autistic child is a full-time job, as the disorder requires treatment well beyond the needs of a typical child. The parent awarded custody must generally be available to provide for a variety of therapies including, but not limited to, speech, occupational, social, and physical therapies. It is especially important to enlist these therapeutic interventions during the most formative developmental years of the child’s life, or between birth and five years old.2 Supplemental health care is usually necessary, and additional medications and dietary requirements are also possibilities.
Even with ample resources and full-time assistance, autism is a long-term disorder. While it may improve, it will not disappear from the lives of those affected. Therefore, this is also an important consideration when determining custody, as the custodial parent may be responsible for the autistic child’s well being far beyond the age of majority. Usually, judges need only be concerned with the custodial arrangements until the child reaches the age of 18, which is the legal age of majority in Illinois. With autism, judges need to concern themselves with the much more extensive and long-term welfare of the perhaps very young special needs child
The care of an autistic child can be extremely challenging and requires a dedicated and committed individual. Because of the sensory issues that often accompany the disorder, special equipment is sometimes required, as are adaptations to the physical environment of the child’s home itself. A parent unwilling to recognize these issues or unable to make these accommodations would not be a practical choice as the custodial parent for an autistic child, even if, in all other ways, that same parent appears to the court to be “fit” for parenting a non-autistic child.
Additionally, of growing concern is the ability to control one’s autistic child. Restraint is often necessary within this population, and parents often struggle with controlling their autistic child. This is especially important as the child grows older and becomes more difficult to manage physically. His custodian must be capable of this, if necessary, or must be endowed with the emotional fortitude to make the very difficult decision to provide him with other means of care, such as in a residential facility. Such emotional fortitude speaks to a fitness for parenting that exceeds the standards typically in play in a “regular” custody determination. Without more information about the disorder, those who determine custody might not consider the factors that alter the practical meaning of fitness within the context of autism. For example, autistic children frequently do not sleep through the night and have a propensity for escaping from the home and from supervision. Their caregiver must be unusually vigilant, while not being well rested. Caregivers can suffer from exhaustion and depression, and can feel isolated in the lonely world of raising a special needs child, which disconnects them from “normal” parents. Given these considerations, fitness for the long-term custody and care of an autistic child can be quite different from the legal definition of fitness for parenting in Illinois. Courts have awarded sole custody to one parent if the other parent is unfit, based on a history of alcohol or drug abuse, a history of violence, destructive behavior, mentally instability, or endangering the child in accordance with both the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101, et seq.) and the Adoption Act (750 ILCS 50/1, et seq.). However, in cases where autism is a factor yet none of these characteristics of unfitness apply, courts generally revert to the best interest of the child standard. This standard does account for autism in either the parent or the child as it incorporates the following statutory element: 750 ILCS 5/602: Best Interest of Child. (a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including: . . . (5) the mental and physical health of all individuals . . . Nolan v. Peters, demonstrates the increasing development of the Illinois legal system’s understanding of autism.3 In Nolan, even though the trial court approved a change of custody to the father of an autistic child because his home was more tidy and organized, the appellate court reversed, recognizing the importance of the mother’s role in improving the potential for the child’s autistic condition such as by initiating his Individualized Education Plan (or IEP - a child’s plan for his special education in the public school system; a legally binding document).4 The Nolan court prioritized an IEP above the home environment, thus signaling the importance of autism to the custody determination.5
The special education needs of an autistic child can be informative in critical matters related to custody, such as removal. Removal of a child from Illinois by one parent over the objection of another must be ordered by the court. As hesitant as courts may be to award sole custody, they are even more reluctant to order removal, as this significantly interferes with visitation between parent and child, regardless of who has custody. However, when one parent is clearly better equipped to raise an autistic child and she petitions the court for removal, sometimes the court has no other choice than to grant the petition. Moreover, what makes that parent the “better equipped” parent can vary greatly. One parent could have a stronger support system and more resources, while the other could be in denial that the child has autism and therefore, be unlikely to secure treatment for him in the future. Such was the case in Cosimini v. Cosimini, decided in 2012.6 In Cosmini, the father of an autistic child did not accept that his child had autism; the trial court ruled in the mother’s favor and granted her petition for removal.7 The father testified that he was “not 100% convinced that [the son] has autism,”8 while the clinical psychologist appointed to the matter testified in court that:
[A]lthough Richard was well-meaning, he doubted Richard had “the ability to deal effectively with the complexity of the constellation of the interlocking problems that [the son] has,” . . . He opined that [the mother] would be more likely to recognize the need for, and follow-up on, treatment while it was doubtful that [the father] would do so.9
Weighing the psychologist’s evaluation, in combination with the child’s special education needs as outlined on his IEP, the trial court rejected the father’s denial of his son’s autism because the disorder was documented.10 The mother secured sole custody of her children and prevailed in her petition for removal.
Child Support. An upward modification of child support is uncommon. However, autism can be a factor when petitioning the court to modify child support. As previously discussed, a diagnosis of autism brings with it additional costs that can include therapy, medication, customized equipment, specialized treatment, and residential care Case law reflects the magnitude of this financial responsibility. In In re Marriage of Gantner, three years after being awarded sole custody of and child support for her two children, one who has autism and the other who is also diagnosed with special needs, a mother petitioned the court for an upward modification in the amount of support she received.11 The court was receptive to the mother’s pleas for additional assistance, referring to her financial burdens due to special needs expenses as “crushing” and ordering an upward modification of child support payable by the father for the treatment each child received.12
Additionally, in Illinois, the generally accepted common law rule is that parents are not obligated to support their adult children.13 However, 750 ILCS 5/513 gives the court powers of equity to provide support past majority in cases of need due to a child›s disability. According to section 513(a) (1), «When the child is mentally or physically disabled and not otherwise emancipated, an application for support may be made before or after the child has attained majority.”14
Marital Settlement Agreements. Because of statutory provisions such as 750 ILCS 5/513, it is important that attorneys are mindful of the implications of autism when drafting a Marital Settlement Agreement that meets the needs of the parties involved. For example, because an autistic child may require lifelong care, one parent may not be able to seek employment. Therefore, a spouse may require an award of permanent maintenance where reviewable maintenance would normally be a more appropriate award.
Similarly, property awards in a Martial Settlement Agreement may require atypical arrangements in order to provide for the long-term needs of an autistic child. Property that customarily would be divided equally between the parties may need to be allocated differently when the matter involves a child who has autism. For example, property may need to be transferred to a special needs trust in order to provide for the continued care of an autistic child.
Unique covenants must be included in a Marital Settlement Agreement that involves a special needs child. Legal services are frequently necessary as the child develops, such as advocates in school disputes and attorneys to establish the aforementioned special needs trust. Therefore, Marital Settlement Agreements must provide for all foreseeable expenses for a special needs child, even when the parents may not be in agreement about the necessary course of action. And, when such disagreements arise in post-decree matters, as they often do between parents of children who have intense and indefinite needs, the Marital Settlement Agreement must specify a clear conflict resolution procedure.
Parenting Agreements. Such conflict resolution provisions must also be incorporated into a Parenting Agreement, along with other special considerations that can make a Parenting Agreement involving an autistic child different from one involving a typically developing child. For example, autistic children are often characterized by a pronounced need for regularity, and demand a fixed schedule. Therefore, a traditional parenting schedule that offers one party parenting time on alternating weekends could be confusing and distressing to an autistic child who relies on doing the same thing, with the same person, in the same place, on the same day every week. Additionally, adjusting to two different home environments can be far more challenging for an autistic child than it may be for a typically developing child. While a typically developing child may become more familiar with concepts and surroundings over time, a child with autism may require specific interventions in order to cope. These can include therapeutic and functional interventions such as picture schedules and/or duplicate equipment in dual residences.
Even standard provisions in a Parenting Agreement can become problematic when an autistic child is involved. For instance, a typical Parenting Agreement will establish guidelines for a child’s communication with the nonresidential parent. However, when a child is non-verbal and not able to read, this issue requires problem-solving strategies not generally familiar to the legal community.
Knowledge of alternative methods is critical to resolving these issues involving special needs children. For instance, when a child knows sign language, requiring access to FaceTime® or Skype®, may be a solution.
If a child is nonverbal, does not know sign language, and also cannot read, use of an app such as Tapgram® can enable communication. This app uses basic pictures as text messages for immediate contact with the nonresidential parent. Using Tapgram®, children can instantly communicate their needs and emotions to their parents such as “I’m happy / sad / hungry / scared.” Other apps allow a non-verbal child to contact emergency services with a single command, while numerous voice apps, such as TapToTalk®, vocalize a picture when pressed, and can be critical for the safety of children who need to communicate with first-responders.
Some autistic children (and adults) have a tendency to wander, so Parenting Agreements may require the use of a security system that arms all windows and doors to prevent fleeing, or a wearable GPS device that locates a missing child. Childcare provisions may specify that special training is required of all future caregivers who will be responsible for the child, and special school stipulations may be included in education provisions. Consequently, attorneys and guardians ad litem involved in divorce cases that concern an autistic child need to be aware that the disorder overlaps into a number of other diagnoses, ranging from ADD to Fragile X Syndrome, and requires multiple interventions and modifications. In order to make proper recommendations to their clients and to the court, attorneys and guardians ad litem need to become educated about the disorder, and remain informed about advances and applications that can help. Judges, as well, need to have access to the same information.
1 Centers for Disease Control and Prevention, Autism Spectrum Disorders: Data & Statistics (available at http://www.cdc.gov/ncbddd/autism/data.html)
2 National Scientific Council on the Developing Child at Harvard University, Formative Years Key in Education, July 31, 2008, (available at http://www.earlychildhoodfocus.org/artman2/publish/preschool/Editorial_Formative_Years_Key_in_Education.shtml)
3 Nolan v. Peters, 2011 Ill. App. Unpub. LEXIS 622.
4 Id at 35-36.
6 Cosimini v. Cosimini, 2012 Ill. App. Unpub. LEXIS 220; 2012 IL App (1st) 112801-U.
7 Id at ¶28, ¶41.
8 Id. at ¶26.
9 Id at ¶11
10 Id at ¶36-37.
11 In re Marriage of Gantner, 2011 Ill. App. Unpub. LEXIS 2903; 2012 IL App (1st) 102381-U ¶4, ¶6.
12 Id at ¶10.
13 See Clark v. Children’s Memorial Hospital, 2011 IL 108656 ¶33,955 N.E.2d 1065.
14 750 ILCS 5/513 .
Jennifer J. Wood is a local Family Law and Special Needs attorney. She is a former teacher, an autism advocate, and a freelance writer for Chicago Parent and Chicago Special Parent magazines. A member of the DuPage County Bar Association, Ms. Wood received her GAL training through the DCBA.