Posts Tagged ‘custody’

Custody Disputes Involving a Child with Autism

Custody Cases when child has autismWhen custody disputes involve an autistic child, additional factors and individual needs should be considered. It is important for all those involved to understand what autism is and what concerns may be important when litigating a case in court, discussing settlement, or representing a child with autism.

What is Autism?

Autism or Autism Spectrum Disorder (ASD) is a serious developmental disability impairing one’s ability to communicate and interact. According to The Centers for Disease Control, “ASD is a developmental disability that causes substantial impairments in social interaction and communication and the presence of unusual behaviors and interests. The thinking and learning abilities of people with ASDs can vary—from gifted to severely challenged.” [1]

Not all autistic children have the same symptoms or individualities. Autistic children often have personality traits such as little to no speech, speak in monotone, are introverted, avoid social interaction, are unable to verbally express themselves and sometimes have behavior disorders such as obsessive-compulsiveness or explosive temper tantrums.

With this array of behaviors, the family must consider what is best for the child. There is one component of Autism that seems to be a common thread in all the studies and research. Autistic children require structure and routine in their lives. Divorce and custody disputes disrupt an autistic child’s normalcy. What was once our house become two separate places: Mom’s house and Dad’s house. So the question is “Who will be the best caregiver to support an autistic child’s special emotional needs and which type of custody is best for this child?”

Here Are A Few Questions to Consider:

  • What was each parent’s role during the diagnosis phase of autism and how did each parent accept it?
  • Was each parent proactive with early intervention and therapy?
  • Which parent actively participated in the daily recommended interventions and what was their level of interaction?

Giving consideration to these questions helps determine the type of custody arrangement that will be best for the child.

Helpful Information to Gather at the Commencement of the Action:

It is important to know a lot of detail concerning the autistic child. Sometimes it is helpful to hire a medical professional to explain the terminology and concepts.
Information that is important to gather includes:

  • Names, addresses, phone numbers and credentials of all professionals with whom the child receives treatment
  • Medications given to the child, including the frequency and dosage
  • Therapies in which the child participates. This includes information about where the therapy is received and the name of the provider
  • The cost of each therapy or service

It is important to fully understand the information that has been gathered. It may be necessary to consult an expert in the field in order to feel comfortable arguing the merits of the case, settle the case, and/or properly represent the minor child. If all the information is not fully understood, representation of the minor child ultimately suffers as a result.

The Court’s Role in Autistic Custody Determination

For the courts to make the determination in a custody case, they consider a host of factors such as character and reputation, the primary caregiver, child’s preference and prior abandonment (or surrender) of custody. In special needs cases, the type of disability, its severity and how the disability affects the best interest of the child is a key factor that adds another dimension to the case. [2]

Sources:

[1] Autism Science Foundation, “What is Autism?” http://autismsciencefoundation.org/what-is-autism/ (2016)
[2] General Assembly of Maryland, “General Assembly.” GAM-Article. N.p., n.d. Web. 13 Feb. 2016. http://mgaleg.maryland.gov/webmga/frmStatutesText.aspx?article=gfl§ion=9-107&ext=html&session=2015RS&tab=subject5
[3] Lawrence R. Jones and David L. Holmes, NJ Lawyer Magazine, “Autism and Divorce, Guidelines for Family Court Practice” http://poac.net/download/resources/Divorce.pdf, (February, 2009).
[4] Chantal Sicile-Kira, Psychology Today, “Divorce Cases Involving Children with Autism” https://www.psychologytoday.com/blog/the-autism-advocate/201505/divorce-cases-involving-children-autism, (May 31, 2015).
[5] C.A. Curie, Autism Key, Autism, “Divorce and Putting Children First” http://www.autismkey.com/autism-divorce-and-putting-children-first/ (March 13, 2011).
[6] The People’s Law Library of Maryland, “Child Custody in Maryland” http://www.peoples-law.org/child-custody-maryland (February 8, 2016).

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7 Challenges and Considerations to Keep in Mind when Representing Non-English Speaking Clients

Representing Non-English Speaking ClientsAlthough traditionally America is a very monolingual society, the percentage of our non-English speaking population, or those with limited knowledge of the English language, is growing rapidly.  In fact, the number of people in the U.S. who speak a language other than English at home has nearly tripled over the past three decades![1] As attorneys, we are often faced with the challenge of representing such individuals with different linguistic background from the court and potentially ourselves. As a bilingual (Spanish/English) attorney, I have experienced these challenges on numerous occasions and can offer my insight when you are faced with such a scenario: 

  1. Listen, Listen, Listen– The first step in providing fair and accurate representation to anyone, is a clear understanding of your client’s situation. When introducing a language barrier or even a slight difference, this becomes a challenge on its own. Ask numerous questions and listen to the whole story repeated. This becomes especially important if you yourself do not speak their language. Taking the extra time to repeat your questions another way and listen for inconsistencies assists in ensuring that nothing gets lost in translation.
  2. Use the Right Translator– Most often, in situations involving a non-english speaking client, a translator will be required for some or all of the court proceedings. Even the best translator adds an additional factor for consideration in your case. As such, here are a few considerations when selecting your translator:
    • Dialect – make sure your translator not only speaks the langue, but also the dialect of your client. These subtle differences can make a dramatic impact on the meaning in many cases.
    • Gender – I find it is best to use a male translator when representing male client vie versa. In certain instances, which come up frequently in family law, the gender and physical factors present in the case are critical elements and an accurate portrayal through your translator can influence the perception of the jury and help them understand the relationship between the parties.
    • Legal Status – Make sure you understand the difference between and “official” translator and an “unofficial translator” and their implications in court. An article published by David Zachary Kaufman on AmericanBar.org puts it this way: “An ‘official’ interpreter is an adult who has been tested for competency and knowledge; an ‘unofficial’ interpreter is anyone else—like a relative or child of your client. In criminal cases unofficial interpreters cannot be compelled to testify about what they hear when interpreting if their presence is ‘reasonably necessary’ for the legal representation… This test does not apply to official interpreters: They cannot be compelled to testify, period.” [2] I would urge you to delve into this in your own state before making your final decision.
  3. Be Aware of Cultural Differences – The vast majority of the time you are representing a non-English speaking client, in addition to pure language differences, there will be culture differences to overcome. An Oregon Supreme Court Task Force reported that “The dominant culture of this … nation is reflected in its courts. Largely non-minority judges and court staff do not understand the cultures of minorities who appear in the courts. “[3] Consider this throughout each step of the process and take steps to clarify and point out cultural difference where necessary.
  4. Anticipate Additional Costs – Representing a non-English speaking client can be more expensive, even for non-complex cases. Attorney L. Richard Brinkman Jr. recommends obtaining a family member or friends to help cut down on the cost where possible. He says “Be aware that using an interpreter slows down communications, requiring all matters to take a longer time. Billing for this extra time may be difficult, and you must decide how to confront this problem in each case. Of course, more complex matters will require more highly skilled interpreters. Certain matters of litigation or more complex transactions may require actual translations of documents. This will be a great expense to the client if the client does not have someone to perform the services.”[4] Even if you speak the same language as your client, a translator will still be required for parts of the process within the court, so keep this in mind as you assess probable costs.
  5. Use the Full, Correct Name – This may seem elementary, but small mistakes can be surprisingly common and troublesome when representing a non-English speaking client simply due to cultural differences. Often the attorney, court clerk, or other individual miss-spells the name of the represented individual due to unfamiliarity, which ends up wasting time and causing hassle.[5] To complicate matters, in some other cultures, individuals will offer their family name first so it is important to identify and spell out their full legal name, including their middle name, and, if possible, verify it with multiple official documents for the outset.
  6. Practice With Your Interpreter – Pre-trial interviews with your interpreter and non-English speaking client or witnesses can be extremely helpful to the outcome of your case. It helps the client or witness become familiar and comfortable with the process. It also helps the interpreter become familiar with the facts, names, locations and specialized vocabulary. All of this will protect your client or witnesses credibility in court and eliminate distractions from the actual case.[6] 
  7. Beware Culture Bound Terms – Just because words have been translated, either by yourself or an interpreter, it does not always mean that meaning has been clearly communicated. A perfect example of this is your client being read their Miranda rights. They may have heard the technical words, but not fully understand that it meant they were not obligated to talk to the police or that the information they shared could be used to prosecute them.[7] Keep this in mind as you prepare your case, during the proceedings, and during your communication with your clients. Along these lines, I typically try to avoid using acronyms or legal terminology without first explaining exactly what they mean to my client. These can go over the head of an English-speaking layperson, let alone someone who needs it translated!

These are just a few of the considerations to keep in mind when representing a non-English speaking client, but you will find that as you begin to think along these lines, other details will come to mind. As with anything, the more experience you have, the more smooth and natural the process will go. If you have any specific questions please leave a comment below and I will do my best to reply in a timely manner. 


[1] Camille Ryan, “Language Use in the United States: 2011” http://www.census.gov/prod/2013pubs/acs-22.pdf,  (August 2013).

[2] David Zachary Kaufman, “What Did You Say? The Perils of Clients Who Don’t Speak English” http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/whatdidyousay.html, (2007).

[3] Oregon Judicial Department, Report of the Oregon Supreme Court Task Force on Racial / Ethnic Issues in the Judicial System: Office of the State Court Administrator, 73 Oregon Law Review 823-947 (Spring 1994).

[4] L. Richard Brinkman Jr., “Representing Non-English Speaking Clients” http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/nonenglishclients.html (February 2007).  First published in 2006 Missouri Bar Solo and Small Firm Conference, Missouri Bar Association, 2006.

[5] L. Richard Brinkman Jr., “Representing Non-English Speaking Clients” http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/nonenglishclients.html (February 2007).  First published in 2006 Missouri Bar Solo and Small Firm Conference, Missouri Bar Association, 2006.

[6] Mary Lou Aranguren, “Representing non-English Speaking Clients: 10 Points Attorneys Should Know” http://www.courts.alaska.gov/language/ten-points.pdf (April 1998)

[7] María Cristina Castro, “Effective Communication with Non-English Speaking Clients” http://apps.dpa.ky.gov/library/manuals/inter/effective.html