How to Gain Custody of an Autistic Child?

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

Factors Considered by the Court to Gain 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), 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, gastrointestinal issues, ADHD, dyspraxia, anxiety, or depression.

To get the best possible outcome for your child, you must brief your child custody lawyer on all the issues surrounding your child’s condition and your plans 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 of 1975  focuses on children’s rights and the responsibilities 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 child’s best interests.

With the best interests of the child doctrine, Australian courts will base their judgements upon the following considerations:

• Historically, which parent has been the primary carer and who in particular has cared for the children since separation;
• The home environment and each parent’s work commitments, parents’ access to medical treatments;
• Each parent’s acceptance or denial of the child’s prognosis and treatment choices;
• Any limits to the 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.

Because of the specific requirements for children on the spectrum, the courts may decide that delivering a consistent routine and home life for these kids is the most crucial consideration. Therefore, a court may rule against a 50-50 custody arrangement, citing that the handover between parents might disrupt the child’s development. If it is a high-conflict case, the courts may also appoint one parent as solely responsible for the medical decisions for the child. 

In family law matters the need for parents to communicate regularly, honestly, and without hostility is heightened in cases where a child has regular medical appointments and requires an exceptionally high level of stability. The Family Court is critical of parents who undervalue the importance of medical treatment or 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 receive the treatment they need.

This can mean making orders granting custody of an autistic child to one parent, mainly if the parties cannot demonstrate the capacity to co-parent peacefully.

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

Also read: Mother vs Father Custody Statistics in Australia

Best Custody Schedule for Autistic Children

Here are some key factors on how to get custody of an autistic child in the best possible way:

• Consistent Routine: Children with autism often thrive on routine and predictability. Therefore, a custody schedule that maintains a consistent routine, minimising disruptions to their daily activities, is generally helpful.
• Transition Time: Changes and transitions can be stressful for autistic children. The schedule should allow for a smooth transition between homes, which might mean longer periods with each parent instead of frequent switches.
• Familiar Environment: The child’s comfort and familiarity with each parent’s home can influence the schedule. A house adapted to the child’s needs, including sensory considerations, can be beneficial.
• Parent’s Availability: The schedule should consider the parent’s ability to meet the child’s needs, including attending therapy sessions, managing behavioural issues, and maintaining a consistent routine.
• Child’s Preferences and Comfort: Depending on the child’s age and ability to communicate, their comfort and preference can be considered while setting up the schedule.

Also read: 5 Essential Facts You Need to Know About Magellan List

How Can a Parent Prepare to Gain Custody of an Autistic Child?

Preparing for a custody battle for an autistic child involves a deep understanding of the child’s specific needs, meticulous planning, and sometimes professional guidance. Here are a few steps parents can take on how to get custody of an autistic child:

1. Understand Your Child’s Needs: Familiarise yourself thoroughly with your child’s condition, daily routine, medical requirements, therapy sessions, special needs education, etc. The court will favour a parent who understands their child’s unique needs.
2. Gather Documentation: Compile all relevant documents, including medical records, therapy reports, school records, and any other paperwork that evidences your active involvement and commitment to the child’s well-being.
3. Secure Reliable Witnesses: Witnesses who can attest to your dedication and ability to care for your child, such as therapists, teachers, or caregivers, could be beneficial.
4. Establish a Suitable Home Environment: Ensure your home environment is safe, comfortable, and adaptable to your child’s needs. This includes access to necessary facilities and resources for their development and well-being.
5. Engage a Skilled Family Lawyer: A family lawyer experienced in handling cases involving children with special needs will be invaluable. They can guide you through the legal process, help prepare your caw, and advocate on your behalf.
6. Stay Calm and Composed: Maintaining emotional composure can be key throughout this process. Demonstrating patience, understanding, and emotional stability can positively affect your parenting ability.

Legal Support Available in Australia for Custody Cases Involving Autistic Children

How to get custody of an autistic child, and what legal support is available for them in Australia?

Several legal support options are available in Australia on how to get custody of an autistic child. These include:

• Family lawyers: Family lawyers can help you understand your legal rights and options, and they can represent you in court if necessary. They can also help you gather evidence and prepare for your case.
• Legal aid: Legal aid is available to people who cannot afford a lawyer. You must meet certain income and asset requirements to qualify for legal assistance.
• Community legal centres: Community legal centres offer free or low-cost legal services to people who cannot afford a lawyer. They can help you with various legal issues, including custody cases.
• Autism advocacy groups: Several autism advocacy groups in Australia can support and advise families involved in custody cases. These groups can help you understand the impact of autism on custody cases and help you find legal support.

Wondering How to Get Custody of an Autistic Child in Australia?

Securing custody of a child with autism can be challenging. 

We’re committed to achieving the best outcome for you and your child. Contact us today for a consultation – let’s walk this journey together.