Lighting Up Family Law In Blue: Competing Views and the Best Interest of the Autistic Child

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

Absent an agreement between parents regarding custody, a court will look to the best interests of the child in deciding to how and to whom custody of a child should be granted. Example: N.C. Gen. Stat. §50-13.2 (a). This same standard is typically applied where a court must determine custody for an adult who, though over the age of 18, is unable to support themselves. N.C. Gen. Stat. §50-13.8. In order to determine the best interests of a child, courts generally consider factors, such as which parent has historically been primary caregiver, any impediments to parenting, prior agreements of the parents, domestic violence, and the child’s age, attachments, needs and wishes.

Divorce and custody determinations, particularly in situations where high conflict or parenting deficiencies exist, can reverberate in children’s behavior. Resulting behavioral effects can include cursing, increased aggression, withdrawal, refusal to take medications, and regression. For an autistic child who already struggles with social interaction, withdrawal can include the loss of previously gained verbal ability. Further, autistic children who experience regression in their educational efforts may struggle more than neurotypical children to regain progress lost as a result of divorce or change in custody, an effect which is typically more pronounced in younger autistic children.

As advocated by attorneys and parties to a custody case, the two predominant views of autism (as previously discussed here) have little impact on a court’s determination of which parent has been the child’s primary caregiver, existing impediments to parenting, the prior agreements of the parents, or issues involving domestic violence. The cure view and the neurodiversity view are in agreement that, regarding an autistic child’s age, a court should consider both the child’s chronological age and developmental age in making its determination. These two views of autism further agree that a court’s consideration of an autistic child’s attachments should include not only the child’s immediate family, but also therapists, teachers, and other professionals who work with the child. However, it is in defining the needs and wishes of the autistic child where these two views diverge.


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The Cure View

Underpinning the wants of the autistic child from the cure view is the ultimate desire for normalcy. This viewpoint defines the wants of the autistic child on the child’s behalf, particularly in the case of an autistic child whose verbal ability is limited or non-existent. From this point of view, the impairments that autism imposes on the child make him or her unable to communicate their wishes accurately.

The cure view defines the needs of an autistic child with a focus on curing the child’s autism, normalizing their behavior, and making them capable of fitting in with peer groups and society in general. Ideal home and school environments should include the sufficient provision of assistive devices or therapies to help the autistic child adapt to their environment. Ideal treatments and therapies that have been deemed effective from this point of view include behavioral therapies, such as ABA, aimed at curbing the child’s autistic behaviors and encouraging more normal behaviors. Alternative or “biomedical” therapies with similar goals are often advocated, as well as more conventional pharmaceutical therapy regimens including “the prescription of stimulants such as Ritalin, antidepressants such as Prozac, and antianxiety agents such as Buspar.” Gray Matters.

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The Neurodiversity View

The neurodiversity view insists, where the child’s communicative abilities allow, that the autistic child should define their own wants. Where the child’s ability to communicate, either verbally or in writing, is limited, a determination of the child’s wants should consider any non-verbal expressions of the same observed by the child’s behavior.

The needs of the autistic child from this viewpoint focus on acceptance of the child’s autism by others in his or her life, assisting the child to adapting to and coping with life in a neurotypical world, and encouraging the child’s interests. “[T]he very idea of a cure,” according to this point of view, “is an assault on identity” of the autistic child. Autism in the U.S. As is often noted by neurodiversity advocates, “certain individuals . . .” despite the difficulties they face due to autism, are “capable of turning their difficulties into gifts, their obsessions into skills, and their perseveration into talent.” Autism in the U.S. Ideally, the home and school environment should include autism-friendly interior and exterior design features which seek to reduce potential sensory overload and are individualized to accommodate the individual child’s particular symptoms and interests. (For more on autism friendly design, see Here, Here, and Here.)

Ideal therapeutic interventions advocated by the neurodiversity view typically include behavioral therapies which focus on helping the autistic child learn to cope with the neurotypical world. The efficacy of many biomedical or alternative treatments often advocated for autistic children is still scientifically questionable, and the efficacy of many treatments may be questionable when considering one particular autistic child versus another due to autism’s extreme variability from person to person. Pharmaceutical treatments are not encouraged by this point of view. The long term effects on children of many of the medications advocated by the cure view are largely unknown. Further, the use of such medications as Ritalin in autistic children, which reduces hyperactivity but may also cause children to withdraw from others, is runs counter to the need to encourage social interaction of autistic individuals.

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 these views will ultimately come to dominate how future courts define the best interests of an autistic child.

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Over the month of April, we will be blogging about several areas of the law and how the law affects, and is affected by, those with autism. We invite you to visit our website, like us on Facebook, follow us on Twitter, and read and share our blog as we do our part to raise autism awareness.

   Join us as we Light Up the Law In Blue.


Posted in: Family