A Divorce Lawyer’s Perspective

By stephanie F. lehMan

As a divorce attorney, I find myself routinely involved in disputes between divorcing or already-divorced parents involving issues related to their child’s Attention Deficit and Hyperactivity Disorder (ADHD) diagnosis. ADHD and Attention Deficit Disorder (ADD) are common behavioral disorders usually diagnosed in childhood with symptoms persisting into adulthood. Children with these conditions may, in addition to being hyperactive, have difficulty concentrating and controlling their impulses. These symptoms, if left untreated, can affect a child’s performance in school and his relationships with friends and family.

Divorce for any child is stressful, but for children with ADHD, it is uniquely challenging. Children with ADHD are more likely to struggle emotionally and academically following a divorce. Many children become hyper-focused on the cause of their parents’ breakup – often blaming themselves – while others are unable to meet the challenges of shuttling between two households. Children can find themselves caught in the middle of their parents’ disagreement about the appropriate dose of medicine to take (or whether to medicate at all) and whether a specialty school is affordable and necessary when public schools are free and may provide services for ADHD. While managing these stressors is often challenging for parents living in an intact relationship, divorced parents all too often run into problems when attempting to co-parent a child with ADHD from two separate households.

A marriage will end in one of two ways: either by the entry of a fully negotiated comprehensive marital agreement which will provide, among other things, the custodial and parenting schedule for the parties’ children, or by a Judgment of Divorce after trial. Frequently, I tell my clients that they know their child better than do I, a judge, or a court-appointed expert. While I am the proud mother of three children, only my husband and I can accommodate their daily routines, sensitivities, and academic challenges. Parents who are unable to work together to ensure that their child’s best interests come first are inadvertently consenting to a judge stepping in. This can mean invasive monitoring by the judge and the court-appointed expert he or she selects, and much less autonomy for the mother and father in determining a visitation schedule and a mechanism for making decisions for their child. These parents are taking the parenting out of parenting and assigning that task to a stranger who may not be sensitive to the needs of a child with ADHD.

The more divorcing parents of ADHD children can resolve in an agreement to support their child’s needs and best interests, the less likely future conflicts will impact the child’s well-being and success. Accord- ingly, it is crucial for parents with ADHD children to keep an open dialogue and make every attempt to arrive at a joint custodial arrangement in which they focus on the specific needs of their ADHD child.

To do that, divorce lawyers should be familiar with the specific needs of a child with ADHD.

• Consistency and Stability Are Crucial For An ADHD Child: Parents should design visitation schedules to meet the needs of the ADHD child – not to meet a parent’s need or desire to be the parent who has more time with the child. Frequent transitions between households are likely not in the ADHD child’s best interests; children with ADHD often have difficulty with executive functions, such as planning, organization, time estimation, time management, and handling transitions – making traveling back and forth between homes more difficult than for children without ADHD. Children with ADHD may tend to forget books or personal items at a parent’s home. Accordingly, the best parenting schedule will minimize transitions between households. It may be best to have a complete set of clothes and other personal items at each home, especially given the sensory related issues common to children with ADHD. Don’t be afraid to use technology, such as a Family Google Calendar, to assist the ADHD child in understanding where he

Continued on Page 42 needs to be during the week. Parents who attend to these details when crafting the agreement will benefit a child with ADHD. There is a greater chance that the child will be less distracted, more able to focus on school, and more in control of ADHD symptoms, including anxiety hypersensitivity.

• Factor Into Child and Spousal Support the Cost of Specialized Services, Therapists and Tutors: While it is difficult, seemingly even impossible, to anticipate every future need of a child, certain costs such as tutoring, therapy, and educational needs are likely known and have already been established for the ADHD child at the time of divorce. Parents should factor in the responsibility each bears for these costs in the agreement. They will need safeguards against the possibility that either parent’s financial circumstance may change after the divorce.

• Common Routines Between Parents’ Homes Should Be Understood and Maintained: Each parent should take full responsibility for monitoring homework, specific diets, and continuity with regular therapies during his or her parenting time. Children with ADHD require parental control and consistency of daily routines between households, including their bedtimes and mealtimes, playing sports, taking medicine, and playing musical instruments. Your parents might want to include a checklist to be followed by each parent in his or her home. Set ground rules and structure within the agreement to make sure each parent is thinking along the same lines.

• Check-ins with the Child’s Therapist and Teachers: Parents should regularly check in with the child’s therapist and teachers, jointly or separately, so that each can stay on top of the child’s needs.

• Incorporate Dispute Resolution Clauses Into A Marital Agreement: It is important to recognize that an agreement that works for a child in elementary school may not work for the same child as he or she progresses in age. ADHD symptoms can change, either improving or worsening as a child ages. As the symptoms evolve, so do the treatments, including medicine dosages, therapies, tutoring needs and perhaps a child’s individual education plan (commonly known as an IEP). It’s smart to include dispute resolution mechanisms to avoid court involvement post-divorce such as a mandatory mediation clause or requiring an advisory opinion from an expert who can, perhaps, persuade the parents to reach a mutually acceptable decision. For example, I have used an educational consultant to offer an advisory opinion on an appropriate school for a child to attend and a psychiatrist to opine on the advantages and disadvantages of using medicine to treat ADHD symptoms.

The best-divorced parents are those that effectively co-parent. However, often co-parenting following divorce is impossible. In many instances, parents continue to harbor resentment toward each other, which impacts their ability to make decisions for their ADHD child despite dispute resolution mechanisms drafted into agreements. In the past year alone, I have found myself in the middle of two post-divorce litigations involving disputes between parents of an ADHD child. These litigations come with hefty emotional and financial price tags. Moreover, frequently issues concerning an ADHD child require immediate resolution. Nothing is immediate when judicial intervention is required. The courts remain back-logged years after the COVID-19 pandemic has quieted. Custodial issues are expensive to litigate, frequently require the retention of an expert or experts – who come with high hourly rates for testimony at trial – and can last for months and years. The stress and emotional upheaval of these battles can psychologically harm a child with ADHD who is already experiencing challenges of his or her own.

Divorce is challenging. The more parents can work together to support the needs of their ADHD child, the more likely the child will be set up for success post-divorce. The child’s best interests are paramount, and it is imperative that the parents and their counsel work together to ensure that post-divorce an ADHD child’s stress and anxiety levels are managed so that her self-esteem and academic success are not compromised.

Stephanie F. Lehman is head of the New York/ New Jersey Metro Family Law practice at Phillips Nizer LLP, representing clients in New York and New Jersey in all areas of matrimonial, family and fertility law for more than 20 years. Stephanie can be reached at (201) 975-4441 or SLehman@PhillipsNizer.com.