Autism has become increasingly visible in our society over the past 15 years, with one in 100 children now being diagnosed with the brain disorder that affects social and communication skills. As a result, it is also more common to find the parents of children with autism in the courtroom. How then can these parents best make arrangements to address the special needs of their child in the divorce process?
While the autism spectrum covers a range of symptoms from mild to severe, what most children with autism have in common is a deep-seated need for structure, routine and predictability. So when parents of special-needs children separate, managing the transition from marriage to divorce is even more fraught. Figuring out shared custody with a child with autism is often more difficult than usual, because successful shared custody for children with autism hinges on establishing a sameness of routine between the homes. But equitably-shared custody may not always be possible, and the child with autism simply may not be able to cope with frequent changes and general differences in routine. The amount of time each parent spends with the child may also depend on other factors, such as the home environment, the parent’s work schedule, the parent’s access to special needs facilities/services and supports. In deciding custody, courts will consider which parent historically has been the primary caregiver, any limits to parenting abilities, any violence issues, the child’s age, needs and wants, the quality of time involved in caregiving, parental mental health, and many other factors.
The courts always look to the ‘best interest of the child’–essentially the child’s happiness and their healthy development to adulthood. But autistic children may or may not achieve particular life skills for independent living, and so provision may need to be made for them into adulthood, and potentially for their lifetime. Some parents find establishing a ‘special needs trust’ helps them, both with regulating current child support payments and with addressing the child’s future needs.
At heart is that lawyers and judges need to be educated on the special-needs child, with both general information on autism, and with specific information on the individual child, through the parents, the child’s therapists and other people involved in the child’s care. Such information will help minimise the impact of divorce on the child, and make sure the child’s future needs are taken into account.
For more information on autism, see: https://www.autismspectrum.org.au/ and for a useful article on how to prepare for a divorce when you have an autistic child, see this: http://autism.wikia.com/wiki/How_is_a_divorce_with_a_child_with_autism_or_special_needs_different%3F
Do you have a child with autism, or perhaps other special needs, and need help with a family law matter? Please contact Cristina Huesch, Sharla Stevens or Angela Li, our friendly solicitors here at Alliance Family Law on (02) 6223 2400 for advice.