Discrimination against parents with disabilities in child custody cases

A new report by the National Council on Disability outlines the child custody challenges that parents with disabilities face. "Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children" explains that parents with disabilities are at a large disadvantage in child custody proceedings or proceedings to remove children. According to the study:

• Thirteen percent of parents with physical disabilities claim they faced discrimination in child custody proceedings.
• Removal rates for parents with psychiatric disabilities are between 70 and 80 percent
• Removal rates for parents with intellectual disabilities are between 40 and 80 percent

In fact, the report found that "parents with disabilities are more likely to lose custody of their children after divorce, have more difficulty in accessing reproductive health care, and face significant barriers to adopting children."

Parents with disabilities face enough challenges without also facing discrimination in the family court system. Why, then, are courts able to discriminate against them? The answer comes down to the phrasing in state laws across the country. Two-thirds of dependency laws allow courts to find that a parent is unfit for parenting on the basis of a disability. Furthermore, courts must always consider the best interests of a child when determining child custody, and may find that a parent's disability prevents him or her from caring properly for the child. While this may not be the case in reality, the stigma is still there.

"In theory, a nexus should always be shown between the disability and harm to the child, so that a child is taken from a custodial parent only when the parent's disability is creating a detriment that cannot be alleviated," the report states, but it found that "this is not the reality."

The report offered many recommendations for reducing discrimination in child custody cases, including:

• Eliminating disability as a grounds for termination of parental rights
• Enacting laws and protections for parents with disabilities, including the possibility of a special needs trust
• Training family court professionals on parenting with a disability and the ADA
• Modifying custody statutes to eliminate discriminatory language

Judges and family law attorneys must also act on their own to understand the challenges that parents with disability face in custody proceedings -- challenges that are greater than those they face as parents, such as financial burdens or ABLE account considerations. If you are disabled and are concerned about your child custody case, an experienced lawyer can help you provide evidence of your ability as a parent, something that is far more important than your intellectual, psychiatric or physical disability.

Our law firm provides legal counsel regarding family law matters in northern Virginia. This includes child custody and visitation, custody enforcement, and a number of other areas. We can also assist with creating ABLE accounts. Contact our team today for legal assistance.

Source: National Council on Disability, "Rocking the Cradle: Ensuring the Rights of Parents with Disability and Their Children," 2012