Children with special needs are some of the most vulnerable members of our society. We, as a society, have a duty to ensure that they are protected and treated fairly. To that end, the family court systems are in great need of information about this population. The professionals, including family court counselors, judges, and custody evaluators, are entrusted with the power to make life destroying, or life supporting decisions. Their ability to do the best for special needs children rests on their knowledge of their specific issues and best practices to address these issues.
Educating courts is complicated by the institutional biases inherent in the current system. Courts understandably want to be fair, and creating a custodial situation that “favors” one parent seems “unfair”– to the other parent. The challenge is focusing the courts on fairness to the children, as opposed to fairness to one parent.
The statutory scheme already has presumptions against the perpetrators of domestic violence and sexual abuse as well as abusers of alcohol and users of illicit drugs. These presumptions are easy for a judge to accept as they involve ascribing “fault” to an offending parent.
The greater challenge is in persuading a court that it should award custody to one parent based solely on issues of greater involvement, education, and stability, because the science and research clearly indicate that the children will do better under those circumstances. Convincing the court of this is challenging even if you have the funds necessary to show the court that science and research.
We can take a lesson from the successes of the domestic violence advocacy community. Nowadays, training regarding domestic violence issues is required as part of continuing education for certified family law specialist attorneys and judicial officers as well as qualification for custody evaluators and child custody recommending counselors. There was a time when this was not so, and the courts were confronted with cases involving issues of domestic violence without the information necessary to resolve them effectively and to protect the children and families involved.
But the squeaky wheel gets the grease, and groups advocating for understanding about domestic violence issues took measures to squeak. Loudly and clearly. Now in addition to mandatory education, there are statutes creating presumptions in favor of victims of domestic violence regarding custody and support such that the legal process can be streamlined for those victims without becoming a venue for re-victimization.
The same is not yet true with regard to the issues of children with special needs. At this time there is no corresponding educational requirement for court-appointed family court counselors, custody evaluators, judges, or family law attorneys. Not only are such courses not required, substantially none are available. This creates a situation where education must be done one case at a time, with the family attorney self-educating using expensive experts, and then presenting those experts to essentially inform the court personally through testimony. This is a process that can take days, weeks, or even months, all at enormous expense to the family. As the court process is adversarial, the presentation of information to the court can often be vigorously opposed by the attorney for a party who might prefer that the court be less informed on the issues of special needs. The result is that limited funds needed by the children for their therapies and services are diverted to pay attorneys and witnesses just to deliver information such that the court can decide what therapies and services the children even need.
It is time for the special needs community to squeak. Loudly and with clarity.
The current situation calls for lawyers representing this population to present experts of various stripes to a judge who is hearing the information for the first time. The presentations include information from psychiatrists, psychologists, advocates, specialists in various therapies, counselors, educators, social workers, and authors, all swimming upstream against the objections of opposing counsel. The trials boil down to much-interrupted week-long seminars from presenters who had studied the issues for years, and who had made their careers on the subject. These are very expensive seminars, and all for a single person– the judge; colossally expensive seminars that have to be repeated again and again for each new judge, for each new case. For example, when deciding living arrangements and time share for children on the autism spectrum, there are a few important principles to follow:
1. Children, especially those on the autism spectrum, do best if they sleep and awake in the same place to prepare for school each week, because adjusting to different environments is very difficult for children on the autism spectrum;
2. That the children do best in the custody of the parent who has been dealing with their particular needs all along and who will most likely to be able to effectively advocate for the children and secure them their necessary therapies;
3. That dealing with children on the spectrum requires special training on the part of the parent– this is not something you can just pick up by reading a book or attending a weekend course; and,
4. That addressing the needs of children on the autism spectrum requires effective consistency above all else.
Trying cases in front of judges who are already well-versed on issues of kids on the spectrum, and special needs in general can save so much money that parents may be left with the economic agility to make wise financial decisions for their children’s needs and everybody’s futures.
Awareness leads to better care and outcomes. Kids need to come first, and when they do, things turn out better in so many ways.