April 2015

The presently existing divides and the course of future law and policy surrounding autism will necessarily be impacted by the cure and neurodiversity viewpoints. At the core of the divide between these two viewpoints is how each side defines disability, a term which has, historically, carried with it derogatory connotations.

No matter what specific legal issue initially brings them to a lawyer’s door, several areas of the law are impacted when an attorney represents an autistic client.

A threshold issue before an accused autistic offender can stand trial is whether the individual is competent to do so. However, the standard an accused must meet to be found incompetent to stand trial is high. Further, if an accused does meet the standard and is found incompetent to stand trial, such a decision will likely compel a civil commitment process. Insanity in the context of a criminal defense can be used in two primary ways to prevent or mitigate punishment for an offense. In the case of an accused autistic offender, the offender’s autism could either negate the mens rea element of the offense charged or, despite the presence of all elements of the crime, excuse the offender’s conduct.

Specifically, as courts increasingly confront autistic defendants in negligence actions, (1) the distinction between physical and mental disability in courts’ analysis of the breach element is likely to be redefined in some measure by autism’s competing views and (2) a core behavioral feature of autism is likely to either encourage more cohesion or result in further inconsistencies in the already splintered landscape of courts’ consideration of foreseeability in negligence actions.

Generally, in making a determination about custody, a court attempts to maintain stability in the life of the child. With the broad judicial discretion granted in making a determination of what is in the best interests of the child, time and increased numbers of cases determining the custody of autistic children will determine which of the competing views of autism will ultimately come to dominate how future courts define the best interests of an autistic child.

Child Custody Payne Law, PLLC. Family Law

Having an autistic child places great strain on many areas of family life, and parents of autistic children are more likely to become divorced. It will be increasingly necessary, as the numbers of autistic children in our nation rise, for family courts to consider issues involving autistic children.

In addition to federal protections, state level constitutional, statutory, and common law protections exist for autistic children. In the area of education law, budgetary pressures combined with rising rates of autism and the struggle between the two primary views of autism are likely to influence legal developments in this area.

Many state and federal laws may affect the education of an autistic child. The primary federal laws impacting autistic children in schools include: (1) the Family Educational Rights and Privacy Act (“FERPA”); (2) the Individuals with Disabilities Education Act (“IDEA”); (3) Section 504 of the Rehabilitation Act (“Section 504”); and (4) the Americans with Disabilities Act (“ADA”).

Many autistic families have cards to hand out explaining that their child is autistic. Why do we wear a shirt or hand out cards notifying strangers our children have autism?

What is autism?
What causes autism?
What are the prevailing societal views influencing the treatment of autism in medical, legal, and educational circles?