Nine Key Takeaways: Co-Parenting Considerations for Families with Neurodivergent Children: What Family Law Professionals Need to Know
Neurodiversity refers to differences in people’s brain function and behavior. In an OurFamilyWizard webinar hosted in March 2024, our guest experts—Hon. Maritza Martinez; Sarah E. Kay, Esq., BCS; and Cari Pines, CFLS—explore the unique challenges of that family law professionals face when working with co-parenting families of neurodivergent children.
During this webinar, Co-Parenting Considerations for Families with Neurodivergent Children: What Family Law Professionals Need to Know, these experts discuss how neurodiversity in a child (or even a parent) can affect the allocation of parenting time and responsibility. You can request to watch the full recorded webinar here.
“Neurodiversity is when the brain is uniquely wired,” explained Sarah E. Kay, Esq., BCS, Florida. “If you get one and only one thing from today, please remember that with neurodiversity, one size does not fit all.”
Key takeaway: Every neurodiverse child has different needs
There’s no one way to make decisions for neurodiverse children; there are a variety of diagnoses, and even among the same diagnosis, there are tremendous variations. For example, two people with autism spectrum disorder (ASD) might present very differently.
Furthermore, there is often overlap in symptoms or even comorbid diagnoses (such as ADHD with autism). Other times, two diagnostic professionals will the same child give two different diagnoses.
Caring for a neurodiverse child can be incredibly complex at baseline; then imagine if the child’s parents aren’t getting along—and might be neurodivergent as well. (Neurodivergence is often genetic or generational.) Maybe the parents disagree about whether the child should be medicated, which ABA (applied behavior analysis) therapist the child should see, or which school services they should request. Maybe one parent fights the diagnosis itself and doesn’t want the child labeled.
These situations require extra consideration among family law professionals because it is even more difficult than usual to determine the best interest of the child when the child is neurodivergent.
The important thing is to understand the specific child’s individualized needs. The legal aspects like “joint legal” and “joint physical”—terms and concepts that vary across states anyway—are far less important than the detailed parenting plan, noted Cari Pines, CFLS, California.
Other takeaways: How to approach clients with neurodiverse children
Many of these concepts surrounding neurodiversity can be applied to children with non-neurological disorders, like arthritis or asthma, but neurodiversity is even more important to view from a complex lens because it is behaviorally based.
1: Educate yourself
If you have a client whose child has ataxia, and you don’t know what ataxia is, that’s perfectly fine—most people don’t. But find out. Do your research. Sarah suggests reaching out to relevant nonprofits. (For example, the National Ataxia Foundation is a wealth of resources and research.)
2: Ask questions
When you’re working with a child with special needs, take the time to understand those individual needs. Even if you’re familiar with the diagnosis, you don’t know how it presents in that child—until you ask. So use open-ended questions and prompts, like these Sarah suggested:
- Tell me about your child.
- How does your child react to change?
- How does your child react to surprise?
Cari uses a special add-on to her basic intake form for families with special-needs kids. “I try to get as much detail as possible about the actual symptomology,” she said. “I want to know what services are in place, what diagnoses are in place, if the kid is evaluated and by whom, what funding sources there are, etc.”
3: Make a “Day in the Life” video or log
Dig deeper than forms and intake. There’s so much involved when you deal with everyday parenting activities, Cari noted. The best way to explain it to the court is with a “day in the life” video or detailed description. “These are the problems we encounter in the morning, with medications, breakfast, packing lunch…” Cari explained, “That type of information is critical for the attorney to be able to present to the court.”
4: Educate the judge
“Judges don’t always have special education here,” explained Hon. Maritza Martinez, Illinois. “You’re educating the judge.” That’s why it’s so important to know how the child is adapting to their homes, school, and communities.
Cari added, “It’s not just about the law and your strategic approach, but also about the specific disorder. But the diagnosis isn’t the most important. I like to present symptomology.” How do these issues affect the child in this household versus the other household? How is medication being managed? Are the parents on the same clinical team?
“I handle client intakes like IEPs [individualized education plans],” Cari concludes. “What are the issues, what have you done to solve them, and what intervention are we seeking—and does the court have the authority to do that?”
5: Minimize surprises
Both parents and children with ASD struggle with surprises, Sarah noted. Predictability in scheduling is helpful for everyone; if the child is with Mom every Monday and Dad every Tuesday, they can rely on that and expect it to be the same every week. Consider making that your standard parenting plan.
6: Use OurFamilyWizard
Hon. Martinez believes OurFamilyWizard can be a big help to co-parenting families with neurodivergent children. “I tell parents to put different doctor appointments in the Calendar. Put specialists’ information in the Info Bank.”
A parent could even write diet management instructions, Hon. Martinez suggests: Avoid sugar after 4 p.m., or it will exacerbate the child’s symptoms. “I don’t like to micromanage, but with neurodiverse children, there’s a little more hands-on involvement from the court.
7: Consider both parents’ perspectives
Both Mom’s and Dad’s perspectives are valid and helpful, Sarah notes. “You do the child a disservice to ignore one or the other.”
If a client walks in and says, “I just can’t have the kids sleeping at Mom’s on a school night,” Cari explained that she has to find out why—behaviorally and situationally. Often, clients have a hard time articulating it, so she asks questions. When is the child’s ABA therapy, do they play sports, are they homeschooling? “It’s my job to arm the court with that information,” she said—“after trying to settle out of court.”
8: Ask for a knowledgeable guardian ad litem or minor’s counsel
A guardian ad litem or minor’s counsel who is well-versed in special needs children, through experience and/or through training, can be critically important.
One size doesn’t fit all, so tailor your approach.
It’s crucial to take the time to understand the child’s special needs (and maybe even the parents’). Making assumptions does a disservice to both the child and the parents. “The diagnosis is not the end of the discussion,” says Sarah. “It’s just the beginning.”
Family Law Practitioners
