Children With Autism or Special Needs

Studies have shown that parents of children with special needs are under heightened stress levels.

Further, stress can be a contributing factor in the breakdown of a marriage. Children who are on the autism spectrum, or otherwise have special needs, require certain considerations that must be taken into account when fashioning a visitation and custody arrangement that will be most beneficial for the child when parents are divorcing. Families with children who have special needs also have different financial considerations.

There are two types of custody in New Jersey: legal and physical custody. The parent with legal custody is the one who makes major decisions on behalf of the child. The parent with physical custody is the one who resides with the child.

Typically, in New Jersey, legal custody is jointly shared. This way, both parents have an equal say in all-important matters concerning their child. However, this is easier said than done. Divorced spouses may have trouble communicating and agreeing, necessitating the help of a neutral third party or lawyer.

Physical Custody of Children with Special Needs

If parents are unable to agree on who should have physical custody, the courts will make a determination in the best interests of the child.

Some factors that are considered in determining where a child with special needs should reside include:

  • Which parent has been the primary caregiver since the child’s disability was diagnosed?
  • Has the child bonded with one particular parent? This may be particularly relevant for children on the spectrum.
  • How has each parent responded to the child’s diagnosis? Some parents may not be responsible enough to care for a child with special needs for an extended period.
  • How supportive has each parent been of the child’s treatment?
  • What is each parent’s daily schedule like? Children with special needs tend to have more absences and sick days than other children.
  • What do the child’s teachers, therapists, and medical professionals suggest would be ideal for the child in terms of custody?
  • How is each parent able to handle the stress that comes with raising a child with special needs?
  • What does the child want?

Visitation Considerations for Children With Autism

Regardless of where the court determines the child should reside, or where the parents mutually agree they should reside, both parents are typically entitled to share in parenting time. Although a split parenting time arrangement may be ideal for most children, this type of arrangement can be disruptive for a child with special needs, particularly one who has been diagnosed with an autism spectrum disorder (ASD).

Children diagnosed with an ASD tend to have difficulty with transitions, as such, a parenting time arrangement with lots of transition can impede the child’s progress and development. Children on the spectrum may be more likely to thrive with a structured routine and consistent parenting style.

Additional Considerations for Custody of Children With Autism

The state’s child support guidelines were not developed to accommodate the increased financial burden of raising a child with special needs. In addition to providing food, shelter, and clothing, the custodial parent may also have to pay for medical treatments, specialist bills, medication, therapy, equipment, and perhaps even private school tuition. Further, even basic expenses like childcare and food may become much more expensive for a child with special needs. These are all costs that an experienced lawyer can help you negotiate into a support agreement.

In addition, children with special needs often require support for longer than other children. Parties should consider extending the payments beyond the typical timeline.


A person with special needs who requires ongoing assistance with daily living and day-to-day decision-making may require a guardian once they turn 18 years old. Commonly, one or both parents will continue to serve as guardian(s) for their child who has special needs.

The needs of the person determine the nature and extent of the guardianship ordered by the court. A Guardian of the Estate is an individual who manages the financial affairs, including assets, income, and expenses, of a person with special needs. A Guardian of the Person is an individual who manages the personal affairs and day-to-day decisions of the person with special needs. A full or complete guardianship generally includes both guardian of the estate and guardian of the person.

There are also alternatives to a guardianship, including but not limited to:

  • Health care directive.
  • Power of attorney.
  • Representative payee for the purposes of receiving Social Security benefits.

Special Needs Trusts

A special needs trust for your child should be incorporated as part of your own long-term care or Medicaid planning. One of our New Jersey child custody lawyers at Lyons & Associates, P.C. can help you draft a document to ensure that money will be available to your child throughout their lifetime in addition to preserving their ability to access government benefits.

New Jersey Child Custody Lawyers at Lyons & Associates, P.C. Represent Parents of Children With Special Needs in Divorce and Custody Proceedings

We have extensive experience representing parents of children with special needs. To learn more about how we can help you, contact one of our New Jersey child custody lawyers at Lyons & Associates, P.C. today at 908-575-9777 or contact us online. We are committed to putting the best interests of your child first. Located in Somerville, Morristown, and Freehold, New Jersey, we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.