How to gain custody of an autistic child?

custody of autistic child

If you are wondering about how to gain custody of an autistic child, the first thing you need to consider is whether the Australian family court system treats parenting cases where there are children with Autism Spectrum Disorder (ASD) significantly different from those with children who don’t suffer from any developmental disabilities.

Gain Custody of an Autistic Child
Image courtesy of Sharon McCutcheon Creative Commons

Parenting orders in Australia are not made in a generic fashion, they vary on a case-by-case basis. Courts will also take into consideration the views of the child but these will not, on their own, determine the final rulings about custody of an autistic child.

Factors influencing custody of an autistic child?

In Australia, most recent statistics suggest that at least 1 in 80 children have been diagnosed with Autism Spectrum Disorder (ASD) which is a developmental disability delivering a wide range of symptoms affecting each child differently. Kids on the spectrum can also have co-occurring medical conditions such as intellectual disability, epilepsy, gastro-intestinal issues, ADHD, dyspraxia, anxiety or depression.

In order to get the possible outcome for your child, you need to brief your legal team on all the issues around your child’s condition and your plans going forward to co-parent. In this regard, your lawyer may require you to obtain expert medical evidence and testimony about your child’s condition and treatment options.

The Family Law Act 1975  focuses upon the rights of children and the responsibilities that each parent has towards their children. Under this legislation there is a presumption that both parents are responsible for the welfare of their children until the children turn 18. There is also a presumption that parenting arrangements and shared responsibilities are undertaken to serve the best interests of the child.

In relation to the best interests of the child doctrine, Australian courts will base their judgments upon the following considerations:

  • Historically, which parent has been the primary caregiver and who in particular has cared for the children since separation;
  • The home environment and each parents’ work commitments, parents’ access to medical treatments;
  • Each parents acceptance or denial of the child’s prognosis and treatment choices;
  • Any limits to parental capacity of each parent and/or potential mental health issues;
  • Any family violence or abuse issues;
  • each parent’s ability to manage the stressors involved in raising a child on the ASD spectrum;
  • The child’s age needs and expressed wishes and the capacity of the child to understand any consequences that may apply to their expressed wishes.

Children on the spectrum will require extra consideration by the courts to ensure that the autistic child’s lifestyle is not adversely impacted by parental separation and divorce.  Autism spectrum disorder can vary from high range disability and non-functioning to very high functioning, highly intelligent children.

Because of the specific requirements for children on the spectrum, the courts may decide that the most important consideration is delivering a consistent routine and home life for these kids.  For that reason, a court may rule against a 50-50 custody arrangement, citing the handover between parents might be disruptive to the child’s development. Courts will still require equal parental responsibility for the child’s maintenance and welfare though.

In any parenting dispute, the courts focus upon which arrangement is in the best interests of the child and in particular, are the child’s specific needs and routines being accommodated by any future arrangements.

In family law matters, any need for parents to communicate regularly, honestly, and without hostility is heightened in cases where a child has regular medical appointments and requires a particularly high level of stability. The Family Court is critical of parents who are dismissive of the importance of medical treatment, or who make communication difficult (especially in the presence of the children).

The Family Court will, without exception, seek to make orders to protect children from conflict and ensure that they are receiving the treatment they need. This can mean making orders granting custody of an autistic child to one parent particularly if the parties are unable to demonstrate the capacity to peacefully co-parent.

The Family Court may also, where necessary, make orders creating a specific pathway for the parties to communicate in order to ensure that the needs of the children continue to be addressed in the long-term.

How to convince the court to give you custody of an autistic child?

Apart from getting the best possible legal team to represent you, you need to demonstrate to the court that above all, you are focused upon the best interests of the child and you can provide the most stable household with the most consistency to support the needs of your child.

You need to demonstrate that you are not in denial about your child’s medical condition nor are you being oppositional to treatments being offered by medical professionals. You also need to show that you are doing your best to cooperate with the other parent.

Children on the spectrum have a lifelong disability and autistic children can experience an uneven pattern of thinking abilities and difficulty in focus and may experience discomfort in busy, complex social situations. Their social interactions may be misunderstood by those not on the spectrum.

Because divorce and separation is such an incredibly stressful time for both parents and children, but particularly so, for autistic children who may have difficulty in making sense of their new domestic arrangements, courts will be focused upon encouraging families to provide a peaceful transition from an intact family unit to two separate households.


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