The best interests of the child is the principle Australian family dispute resolution is built around. It’s the test parenting arrangements have to satisfy and the standard we keep coming back to in every matter involving kids.
The Family Law Act s 60CC factors to consider when determining what parenting arrangements are in the child’s best interests are:
Arrangements that promote the child’s safety, especially any history of or exposure to family violence or abuse.
The child’s views, taking into account the child’s age and maturity level.
The child’s developmental, psychological, emotional and cultural needs.
Each proposed carer’s ability and capacity to meet all the needs of the child.
The benefit to the child of having a meaningful relationship with parents and other people in their life, where it is safe to do so.
Anything else that is relevant to this particular child and their circumstances.
When the child is autistic, ADHD, or otherwise neurodivergent, it is especially important that each of these criteria be interpreted in light of the particular attributes of that child and their neurology. What is in the best interests of this child may not look anything like what we’d recommend for their neurotypical sibling.
In a survey of child custody evaluators across the United States, Schilling (2008) noted that when working with autistic children, practitioners emphasised that:
Parenting arrangements need to fulfil the unique needs of autistic children.
Parenting arrangements can be impacted by the child’s needs.
Autistic children’s challenges may be aggravated by parenting arrangements.
Autistic children will have more trouble adjusting to a joint parenting arrangement due to their need for routine and difficulty to adapt to schedule changes.
Autistic children are more sensitive to environmental changes.
Standard evaluation procedures need to be adjusted considering some autistic children with delayed language.
Here are some other considerations.
Stability and sameness aren’t the same thing
We all know children need stability. However, for a neurodivergent child, stability tends to mean something specific: predictability, routine, sensory consistency, minimal transitions. These are functional requirements for daily regulation in many of these kids, not preferences.
This changes how a parenting arrangement should be designed. For many autistic children, moving between two houses with different routines, different sensory environments, different rules, and different emotional climates is incredibly challenging. Lahaie, Poitras and Birnbaum (2023) reviewed 104 Quebec court decisions involving children with autism over a ten-year period. Shared parenting was ordered in only 27% of cases. Primary care to one parent was the more common outcome.
Development isn’t linear, and arrangements often need to bend
A parenting order built for a five-year-old autistic child often doesn’t fit the same child at eleven, and fits even less well at fifteen. Masking can intensify with age. Puberty brings sensory and emotional changes that compound regulation difficulties. School demands escalate. Co-occurring anxiety frequently emerges or worsens in adolescence.
The standard set-and-forget approach to parenting orders sits awkwardly with how these kids actually develop. Neurodivergent development moves in fits and starts rather than along a smooth curve. The arrangement that supports the child at one stage can actively destabilise them at the next.
Practitioners working in this space need to think about review points and built-in flexibility.
“Meaningful relationship” needs unpacking
The legislation gives weight to the child’s right to a meaningful relationship with both parents. However, the question of what “meaningful” looks like for a neurodivergent child might look quite different from their neurotypical sibling.
For some neurodivergent children, low-demand, predictable contact that doesn’t require them to mask or perform is what builds a strong relationship. Kids who communicate differently, connect differently, or show affection in ways that don’t match the standard script can have deeply important bonds with a parent that don’t look the way we expect them to look.
If we use neurotypical markers to assess the quality of a parent-child relationship, we’ll underestimate, and sometimes actively undermine, attachments that matter. Damian Milton’s double empathy work (2012) is useful here. The mismatch between autistic and non-autistic ways of communicating runs both ways. It’s not a deficit on the child’s side. When we assess a parent-child bond, the question isn’t only whether the child engages in ways the assessor recognises. It’s whether the assessor can read the child.
The masking problem
Many neurodivergent kids, especially autistic girls and twice-exceptional children, mask in some environments and decompress in others. They hold it together at school, or at one parent’s house, and fall apart at the other.
The research on social camouflaging is now well established. The Camouflaging Autistic Traits Questionnaire (Hull et al., 2019) gave the field a measurement instrument. Subsequent work has linked sustained masking to delayed diagnosis (particularly in girls), elevated anxiety and depression, autistic burnout, and significantly worse mental health outcomes over time. Surveys suggest around three-quarters of autistic people mask at least some of the time.
When the child is calm at Dad’s and dysregulated at Mum’s, this doesn’t mean the child prefers Dad, or that Mum is less capable as a parent. In many cases, what’s actually happening is that the child feels safe enough at Mum’s to stop performing. Decompression is a sign of trust.
The same logic applies in reverse. A child who appears more regulated and engaged with the parent who runs the higher-demand, more performance-oriented household may simply be masking harder there. Calm presentation is not the same as a healthy attachment.
Sensory environment belongs in the assessment
Noise levels, lighting, smells, animals, how many people are in the house, the textures of the food on offer. For some neurodivergent children these aren’t lifestyle details. They’re material to daily functioning.
We don’t routinely treat sensory environment as a best interests factor, however a child placed in a household that doesn’t fit their sensory profile will often present as having behavioural problems, emotional dysregulation, or trouble at school. If nobody in the system knows to look at the sensory side, the source of the difficulty stays invisible.
It’s worth considering:
What does this child’s sensory profile look like across both households?
Are there known triggers that are present in one home and not the other?
Has anyone with sensory expertise, an OT or a treating clinician, actually been asked about the parenting arrangement on the table?
Hearing the child’s voice, accurately
Family law has moved in the right direction on hearing children’s views. The methods we use to elicit those views, though, weren’t designed for neurodivergent kids, and they regularly produce unreliable results.
Some of the patterns worth knowing:
A neurodivergent child’s behaviour (not overtly engaging with a parent, resisting physical contact) may not be indicative of a poor attachment.
An alexithymic child may genuinely not be able to identify or articulate what they want. The research on alexithymia in children is clear that this isn’t a refusal to engage. It’s a difficulty with interoception and emotional labelling.
A child who is used to masking might say what they believe the listener wants to hear.
A child with a PDA profile may refuse the question entirely as a perceived demand. The Australian National Guideline for the Assessment and Diagnosis of Autism now recognises PDA as a behavioural profile, even though it isn’t a standalone DSM-5 diagnosis. That recognition matters when a parent or practitioner pushes back with “PDA isn’t a real thing.”
A parentified child, or one managing a parent’s anxiety, may suppress their own preferences entirely to keep the peace.
We need frameworks for recognising this without falling into the opposite trap of dismissing the child’s voice altogether.
Co-regulation is a concrete functional need
A lot of neurodivergent children rely heavily on co-regulation. They need a trusted adult who helps them manage emotional and sensory states before they have the capacity to do that work themselves. It’s a neurological reality, and how much of it each parent can offer matters for the child’s daily functioning across both households.
Where one parent provides effective co-regulation and the other doesn’t, that’s relevant. The point isn’t to blame the less-attuned parent. It’s to be honest about what the child actually needs and ask whether the arrangement on the table delivers it. Capacity to learn is also relevant. A parent who doesn’t currently co-regulate well but is willing to develop the skill is in a different position from one who refuses to engage with the concept at all.
Changeover as its own risk point
Transitions are difficult for many neurodivergent children. Ending one environment and starting another asks for neurological adjustment that can lead to heightened dysregulation. Put a high-conflict changeover on top of that and the cost stacks up fast.
An arrangement that looks workable on time and logistics can still put a child in repeated distress if the changeover itself isn’t carefully designed. Worth asking:
How long does this child need to decompress after a transition?
Are there rituals or objects that support the shift?
What does the handover actually look like, and what would make it less destabilising?
Is the frequency of changeover working against the child even when the total time allocation looks reasonable?
When the parents disagree about the diagnosis
This comes up often, and the practical fallout is significant. Where one parent accepts the child’s neurodivergence and the other doesn’t, there are downstream effects for medication, school support, how behaviour is interpreted at home, and what is expected of the child in each household.
The disagreement can take several forms:
Whether the child should be assessed at all
Whether to accept an existing diagnosis
Which clinician’s view to follow when reports differ
Whether to follow recommended supports, including therapies, accommodations and medication
How to interpret the child’s behaviour day-to-day in each home
Defaulting to “the parents need to agree” isn’t a workable answer here, particularly where one parent’s position means the child is being consistently asked to behave in ways that aren’t actually available to them. We need approaches that hold the child at the centre rather than just splitting the difference between two adult positions.
The s 60CC reference to capacity to provide for the child’s “developmental, psychological, emotional… needs” is directly relevant. A parent who refuses to recognise or accommodate the child’s neurodivergence is, on the face of it, less capable of providing for those needs than one who does. How that gets evidenced and weighed is something practitioners working with these families need to be thinking about.
A different lens, not a different standard
A willingness to look at the assumptions sitting underneath standard practice, and to check whether the picture of “best interests” being applied actually fits the child in the room, is the foundation of all of this. Practitioners don’t need to retrain as developmental specialists.
S60CC already gives us the framework. The neurodivergent self-advocacy and research communities, much of it autistic-led, have done the conceptual work. What’s needed now is practitioner training that brings these together for the day-to-day work of family dispute resolution.
Questions for reflection:
When you’ve assessed a parent-child relationship, were you looking for connection that might present in non-standard ways?
When you’ve encountered a child who was calm at one parent’s and dysregulated at the other’s, what interpretation did you reach for first?
What would it take, in your own practice, to make sensory environment and co-regulation visible factors in a best interests analysis?
When the parents disagree about diagnosis, are you working from a framework that genuinely centres the child, or one that defaults to splitting the difference?
The Working with Neurodivergent Clients in Conflict course is built to take these questions seriously and give practitioners frameworks they can actually use. Part 1: Foundations is open for beta testing now at $297 + GST, with discounted access to the remaining parts for beta participants.