Autism, Custody and Access Issues

There is a popular belief that having an Autistic child causes so much parental stress and discord that the divorce rate is at least 80%. However, this is a myth, as research on over 900 families who have an Autistic child has found no evidence to suggest a greater risk of divorce (Freedman et al. 2012). The study found that 64% of Autistic children had married parents, compared to 65% of non-autistic children. If divorce occurred, the level of support needs was not a factor. Instead, results showed that divorce was more likely when the Autistic child was young. In the first few years after diagnosis, there can be stress associated with acceptance of the diagnosis and the effects on the relationship of intensive early intervention. Over time, many families adapt, and stress levels stabilise. Research shows that parents of Autistic children experience higher rates of depression, anxiety, stress and burnout than parents of nonautistic children (Chen et al., 2024). The rates of depression are often higher in mothers than in fathers, likely due to mothers often taking on a more prominent caregiving role. Each of these factors can impact marital satisfaction (Freedman et al. 2012).

When divorce occurs, there can be legal issues regarding custody and access, and the Autistic child’s specific needs are often a specific consideration. Here are some common issues that may arise:

Best Interests of the Child

• Courts will prioritise the child’s best interests when making custody and access decisions. For an Autistic child, their best interests often require particular attention to their developmental and emotional needs.
• Judges may ask for expert evaluations (e.g., from psychologists or developmental specialists) to better understand the child’s specific needs to make decisions regarding custody and access.

Parenting Ability and Capacity

• The ability of each parent to understand and accommodate the needs of the autistic child is a critical factor in custody decisions. This may include:
• Acceptance of the diagnosis of autism.
• Ability to provide emotional and practical support.
• Knowledge of the child’s therapeutic and educational requirements.
• Capacity to manage the child’s routines and behaviours effectively.
• Willingness to cooperate with professionals involved in the child’s care.
• Parents might have different levels of ability or understanding regarding how to meet the child’s unique needs and be effective advocates with relevant agencies.

Consistency and Structure

• Many Autistic children thrive on routine, consistency and structure. A disruption in their daily routine (e.g., due to changing homes frequently between parents) can be particularly distressing for them.
• Courts may prefer arrangements that maintain consistency for an Autistic child, such as having a primary residence with one parent and specific, structured visitation with the other.

Therapeutic and Support Needs

• Autistic children often have specialised therapeutic and support needs (e.g., speech therapy, occupational therapy, and behavioural interventions), which are time-consuming. Parents will be expected to engage and liaise with and coordinate support and therapy services.
• The court may consider how much each parent educates themselves in the various therapy and support services.
• Both parents may be required to ensure that the child has access to necessary support and therapy. Custody arrangements may be influenced if one parent fails to follow therapeutic and support plans.
• Decisions on therapy, treatment options and support to ensure consistency might require mediation or court intervention, especially in high-conflict divorce proceedings.

Educational Requirements

• Autistic children may require specific school placements, which can vary between geographical locations. The parent/s with custody may have significant input in selecting schools or managing Individualized Education Programs (IEPs).
• Frequent school changes can be detrimental, so stability in educational placement is often prioritised.

Communication and Collaboration Between Parents

• Co-parenting an autistic child often requires a high level of cooperation and communication. Parents must coordinate appointments, therapy sessions, and schooling and remain consistent in behaviour management approaches.
• Courts may recommend joint parenting plans, but one parent may be given more decision-making authority if communication is poor.
• The prevention by one parent of another’s meaningful involvement in therapy will impede positive outcomes for an Autistic child. The court would perceive it as contrary to the child’s best interests.

Sensory Sensitivities and Environment

• Autistic children can have specific sensory sensitivities that need to be considered in custody decisions. The child’s environment in each parent’s home must be accommodating, calm, and suited to their needs.
• A home that is overly stimulating or lacks accommodations for autism may not be appropriate for the child.

Sibling Relationships

• The relationship between the autistic child and their siblings can be important in custody arrangements. Courts might consider whether a separation of siblings could negatively affect the Autistic child, especially if they rely on their siblings for emotional support or routines.

Access Schedules

• Traditional access schedules (e.g., alternating weekends or overnight visits) may need to be adjusted for an Autistic child. The schedule must be tailored to the child’s unique behavioural and developmental abilities.
• Some Autistic children may struggle with transitions between homes, so minimising the frequency of transitions could be beneficial to their well-being.

Child Advocate

• A court may appoint a child advocate to represent the best interests of the Autistic child during the custody proceedings. The advocate’s role is to make recommendations based on the child’s needs and ensure the court recognises their preferences.

Financial Considerations

• There may be additional financial responsibilities (e.g., therapy, resources, or medical expenses). Parents may need to negotiate how these costs will be shared in a custody arrangement.
• Child support payments might be adjusted to account for the child’s long-term needs, especially if they are likely to continue needing support beyond the age of majority.

Impact on Long-Term Care

Some Autistic children may require care and support beyond the age of 18. This could impact long-term custody and financial arrangements, including who will be responsible for decisions regarding the child’s future care, education and support, and living arrangements.

Practical Steps for Parents

• Obtain expert evaluations: Consider getting professional assessments to outline the child’s specific needs.
• Build an ‘umbrella’ over the Autistic child: Regardless of the level of tension or acrimony in the relationship, as much as it is possible to do so, protect your child from these feelings.
• Develop a comprehensive parenting plan: The plan should address all aspects of the child’s care, including schooling, therapy, support and medical needs, and transitions between homes.
• Be flexible: Understand that the child’s needs may change over time, so the custody arrangement may need to evolve.
• Consider mediation or counselling: These can help parents resolve disputes and improve communication, ensuring that the child’s needs remain the priority.
• Be aware that the characteristics of Autism may be different in each household.
• Being present during conflict and acrimony between parents will be distressing for an Autistic child, who is likely to be very sensitive to either parent’s distress. A court may make an order regarding avoiding arguments in the presence of the Autistic child or third-party supervision during times associated with expressed agitation.
• An Autistic child will need to be adequately prepared before access visits and supported when those visits end.

Where to from here?

Tony and Michelle will present a webinar, Autism in the Family, on 15 November 2024. The webinar will help participants understand the effects of Autism on family dynamics and appropriate ways of accommodating Autism within the family.

References

Chen et al. (2024) Factors predicting depressive symptoms in parents of children with autism spectrum disorder in eastern China. BMC Public Health. 2024 Jan 18;24(1):226. doi: 10.1186/s12889-024-17731-7.

Freedman, B. H., Kalb, L. G., Zablotsky, B., & Stuart, E. A. (2012). Relationship status among parents of children with autism spectrum disorders: A population-based study. Journal of Autism and Developmental Disorders, 42, 539-548.