Children with Development Disabilities This section of the blog will address the two most common developmental disabilities a family law practitioner faces in a conservatorship case: Autism Spectrum Disorders (ASDs) and Attention Deficit Hyperactivity Disorder. The explosion of these cases over the last fifteen years mandates that we provide our clients with guidance beyond the Family Code and the SPO as they struggle not only with a broken family, but with a child for whom getting through the day may be a struggle in itself. A. About Autism Spectrum Disorders Autism spectrum disorders (ASDs) are a group of developmental disabilities defined by significant impairments in social interaction and communication and the presence of unusual behaviors and interests.

Many people with ASDs also have unusual ways of learning, paying attention, or reacting to different sensations. The thinking and learning abilities of people with ASDs can vary – from gifted to severely challenged. ASD begins before the age of 3 and lasts throughout a person’s life. It occurs in all racial, ethnic, and socioeconomic groups and is four times more likely to occur in boys than girls.

1A 2007 Centers for Disease Control & Prevention (CDC) study found the rate of autism spectrum disorder in children occurring at 1 in 150 children and in boys, at 1 in 94.2 People with ASDs frequently lack social skills and communication skills. Frequently, people with ASDs cannot have a back-and-forth conversation – both a social and a communication problem. People with ASDs may have trouble understanding other people’s feelings. Self-stimulatory behaviors, such as rocking, singing or talking to themselves, common among people with ASDs, may seem odd to others or make them uncomfortable. Symptoms can range from very mild to quite severe.

About Attention Deficit Hyperactivity Disorder -ADHD Symptoms of ADHD include:

Impulsiveness: a child who acts quickly without thinking first.

Hyperactivity: a child who can’t sit still, walks, runs, or climbs around when others are seated, talks when others are talking.

Inattention: a child who daydreams or seems to be in another world, is sidetracked by what is going on around him or her.

When the child’s hyperactivity, distractibility, poor concentration, or impulsivity begin to affect performance in school, social relationships with other children, or behavior at home, ADHD may be suspected. But because the symptoms vary so much across settings, ADHD is not easy to diagnose. This is especially true when inattentiveness is the primary symptom. there are three subtypes of ADHD recognized by professionals.

These are the predominantly hyperactive-impulsive type (that does not show significant inattention); the predominantly inattentive type (that does not show significant hyperactive-impulsive behavior) sometimes called ADD—an outdated term for this entire disorder; and the combined type (that displays both inattentive and hyperactive-impulsive symptoms).

Three to five percent of the population has ADHD.4 Dr. Edward Hallowell, a physician and author with ADHD, tells his young patients that their brains are like a race car engine. It is turbocharged so it can go very fast, but may need special oil (medication) so it can put on the brakes at the right time and not burn out.5

C. Cases Dealing with ASD. There are only 27 cases in Westlaw that contain the words “autism” or “autistic”. Out of these cases, only three deal with issues relevant to conservatorship and possession of the children:

1. In Re C.S. 09-06-211-CV, 2007 WL 685630 (Tex.App. – Beaumont 2007, no pet.) (mem. op.). The Beaumont Court affirmed a modification of conservatorship and gave father right to determine primary residence for son while mother continued to have right to determine residence for daughter. Mother’s primary objection on appeal was that the children should not be split up.

Among the evidence the trial court used to determine the change was in the child’s best interest was:

(1) father initiated testing for son because he had significant educational and behavioral issues;

(2) son was diagnosed with Pervasive Delayed Development Disorder (PDD), a form of ASD, and learning disabilities;

(3) father had son repeat 3rd grade at recommendation of expert’s but over objection of mother and mother’s advocate, her sister;

(4) father initiated activities based on expert’s recommendations to improve child’s self esteem and educational achievements;

(5) father was involved with children and their school work and problems;

(6) mother abdicated input at the school regarding academic issues to her sister in writing;

(7) mother was far less involved in educational process and showed a limited ability to grasp the son’s learning problems;

(8) mother discontinued prescribed medication for the son from a doctor selected by the father; and

(9) mother refused to adjust schedules for son to receive tutoring.

*3. The court of appeals found no abuse of discretion in the modification of primary residence of the son.