Litigation

The fact that one sibling suffers from autism, without additional empirical evidence, does not warrant a separation of siblings where each child resides with one parent. In re Heath, B171500, Court of Appeal of California, Second Appellate District, Division Seven, September 15, 2004.

The parents were divorced and the children resided with the mother. Thereafter, the father moved for a change of custody, arguing that the younger sibling was adversely affected by the older sibling's autism, including “mimicking” behavior. After a hearing the trial court ordered that the older sibling reside with the mother and the younger reside with the father, with visitation between each sibling and the non-resident parent. The mother appealed, and the appellate court reversed. It held that the trial court's decision was an abuse of discretion because it did not rest its opinion on any expert evidence or other empirical evidence and only applied its own “hunches” and assumptions and the opinion of the father in making its decision. The appellate court held that although a separation of siblings may be warranted under certain circumstances, the mere fact that the older child suffered from a disability, without further support, was not sufficient to warrant a separation. The court remanded the matter for further hearings, and on remand ordered that each child be appointed separate counsel because of each child's divergent interests.