Ask the Expert: What are some important custody considerations for family courts regarding children with Fetal Alcohol Spectrum Disorders?

Attorney Jennifer Moore discusses important custody considerations.

Welcome to our Ask the Expert series, in which our panel of health, justice, and education experts answer your questions related to Fetal Alcohol Spectrum Disorders (FASD). Here, family law attorney and caregiver Jennifer Moore discusses child custody issues. Got a question of your own? Email ruth@mofas.org.

About the Expert: Jennifer graduated from the University of Minnesota cum laude with a bachelor’s degree in speech communications. She went on to go to the University of Minnesota Law School, where she graduated cum laude. While at the University of Minnesota, Jennifer worked on the Journal of Law and Inequality, where she developed a passion for helping individuals navigate their way through what can be a very complicated legal system. Upon graduation, Jennifer worked with the Minnesota Court of Appeals and with the Fourth Judicial District as a law clerk, working not only on civil litigation matters, but also on family court issues. Jennifer has also worked on class action litigation, and as an independent legal researcher and writer. She is the founder of Moore Family Law.

Question:

What are some considerations for custody issues with children with an FASD?

Answer:

We know a few things about our children with a FASD. We know that work best with a very structured environment. We know they need an external brain to help them keep up with the demands of childhood. And we know they have more medical, therapeutic, and educational needs than a neuro-typical kid.

Educating the Court

The family court may know nothing about our kids’ needs. What’s worse, the other parent may not understand the needs of their own child.

In recent years, there have been significant changes to the custody statute that purport to recognize that some children have special needs. However, because every kid is different, it is up to parents and their attorneys to help the Court understand what kind of custody arrangements might be in the best interests of their child. To do this, you may want to enlist the expertise of your team of physicians, therapists, educators, and personal care attendants. It is important to be concrete. It’s not enough to tell the court that your child needs structure. Rather, you might tell a story about how last week, your first-grader’s schedule got a little out of whack and no one was there to remind him that it was time to go to the bathroom, so he had an accident at school.

Or, you might say that your child is prone to stealing his siblings’ money, so you find it is necessary to keep your children’s money locked in a safe. Or, that your daughter forgets to check what the weather is like outside and she will go out in 30 below weather without a coat and hat.

It’s these types of stories that will help a Court understand what parenting your child is like.

Often, the Court will also need information to understand how discipline works in your home. Most of us know that FASD are a subset of organic brain damage, and the behavior is mostly not willful. As parents, we know that punishment tends to misfire, because the temporal connection between the behavior and the consequence and the special connection between the incident and the consequence are too remote for some of our children to understand. But, often, the other parent may not “get” this. That causes conflict, and if the Court doesn’t understand the nature of your child’s disability, they may not be able to craft a parenting arrangement that protects your child from the trauma associated with ineffective punishment.

Effective Parenting Schedules

Courts generally create parenting schedules that work best for neuro-typical kids. Considerations might be the child’s school and activity schedules, the parents’ work schedules, and the distances between homes and the school. Minnesota Courts prefer schedules that approach equal parenting time, although “every other weekends and one night a week” schedules are still common. Courts also prefer parenting time to be overnight once a child reaches pre-school age. Our children with an FASD, though, may be emotionally immature. They may not be able to handle overnights, or long weekends away from one parent—especially when the child has relied primarily on one parent to act as that external brain.

But, even more frequently in my practice, I find that our children with an FASD need predictable schedules. If you can put a big blue dot on a calendar for the days that Daddy is going to take your child home, and those big blue dots are in the same place most weeks, you will have better transitions. Similarly, it may be necessary to prepare for those transitions in advance. You might find it helpful to pack a “go-bag” the night before a transition. Finally, there may be a need to have fairly liberal phone contact between the child and the other parent while you are the on-duty parent. They may just need to check-in with the other external brain in their life.

Supportive Services

A lot of our kids receive waivered services. These services are usually coordinated by one parent, and typically, it is assumed in a divorce that there will be a non-custodial parent who will not have the benefit of these services. That is a high-risk plan, since the child’s need for services don’t change with a parenting transition. And if the transition is to a parent that spends less time with the child, it is easy to see how the lack of services might lead to meltdowns. A good parenting plan will look at the role of waivered services in the child’s life.

Conflict

There is nothing more stressful than parenting a child with special needs, unless it is co-parenting a child with special needs after a separation or divorce. For that reason, it is necessary to lay some groundwork during the separation/divorce process to handle disagreements. For example, some families find it helpful to have a quick check-in on Sunday nights during a parenting transition. Others find weekly emails to be a better option. Most families find it helpful to use a shared Google calendar.

Even when parents use these communication methods, there may be times that parents just can’t work through their disagreements. Some strategies that my clients have employed to work through serious disagreements include:

  1. Seeking input from the child’s care team. While your care team isn’t there to be a tie-breaker, parents sometimes find it helpful to present a situation to a therapist to see if the therapist can provide some insight into how the child might see things. This should be a joint effort. The last thing any child needs is for their care-provider to be enlisted in one parent’s side on any issue.
  2. Using mediation services. Virtually every court will require parents to attempt to resolve parenting conflicts through mediation. Most of the time, a qualified mediator will be able to help parents problem solve. At the very least, parents should be able to narrow the issues necessary for litigation or gain an understanding about reasoning behind the other parent’s position.
  3. Hiring a Parenting Consultant. Parenting consultants are private professionals trained in family law dispute resolution. Most are attorneys or therapists. When a dispute arises, a parent can contact the parenting consultant who will seek input from both parties, maybe talk to other people on the child’s team, and in rare circumstances, interview the child. Their decisions are binding, except that there is a very small window to appeal the decision to the family court. There are parenting consultants in Minnesota who are familiar with FASD, although they are somewhat rare.

Parents and family law courts are focused only on one thing—the best interests of kids. It’s up to us to help Court understand our kids. And after the case is over, it’s up to us to keep our family out of the Courts.

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