Child custody refers to the legal rights and responsibilities that a parent has over the care and upbringing of their child. Alternatively, child visitation refers to the legal rights that are granted to a non-custodial parent. What this means is that if a parent does not obtain any type of physical custody over their child, then they will usually be granted visitation rights.
Regardless of whether you are seeking custody or visitation rights, there are two main ways that a party to a divorce or separation proceeding can begin the process:
- By Agreement: If both parties are willing to cooperate with each other, the parents should discuss child custody and visitation arrangements without involving lawyers or the court. In this way, they can come to an agreement on their own terms, then draft an agreement in writing stating the conditions of custody. This agreement should also establish a basic visitation schedule; or
- By Court Order: When the parents cannot come to an agreement on their own, or if the well-being of the child is in jeopardy due to one or both of the parties’ behavior, a court will need to intervene and make decisions regarding the arrangement. When the court is tasked with this decision, it generally indicates that the parents will be given the opportunity to present their side of the story at a hearing.
Whichever method is selected will require a court’s approval of the final child custody agreement, and/or visitation schedule. The difference is that the parties will have more control over schedules and arrangements if they reach an agreement on their own terms. When determining child custody rights, child custody law places the child’s interests and background over any of the parent’s personal preferences. This is known as the “child’s best interest standard”, which is the main standard for determining child custody cases.
When asking “can a disabled person get custody?”, it is important to remember that parents with disabilities are protected under disability and child custody laws. Disabled parents rights are generally covered by The Americans with Disabilities Act, which intends that parents with disabilities are discriminated against when involved in child custody agreements and enforcement policies.
Governmental child protective services have a responsibility to protect children from neglect and abuse. An integral part of this responsibility is that they must respect federal laws associated with disability discrimination. Disabled parents should be made aware of their rights to have and retain custody of their own children.
As long as the parent can provide the necessary parenting for their child, a disability should not be any reason for the court to deny custody or visitation rights. Case law has determined that you must prove one parent to be “unfit” before custody or visitation rights can be terminated. However, disabled parents are often treated unfairly in family courts when an ex-spouse, opposing attorney, or judge attempts to use their disability as an automatic reason to deny custody or visitation rights.
Which Disabilities Pose the Highest Risk?
Disability factors into child custody arrangements if the disability would pose a threat to the child, and that could not be reasonably accommodated or mitigated. Some disabled parents have been illegally separated from their children for being blind, wheelchair-bound, and/or being developmentally disabled. Although many of these situations eventually result in the children being returned to their parents, an unnecessary separation causes strain for everyone and violates the disabled parent’s rights. States are required to help disabled parents adapt to their disabilities in a way that is dignified and allows them to retain their parental rights.
Additionally, courts and state agencies are required to treat disabled parents the same as nondisabled parents in terms of procedures such as fostering and adoption. However, changes in disability status can also affect child support, and may justify a child support modification.
Family lawyers often successfully argue that it is in the child’s best interest to know and to sustain relationships with their parents. Title II of the Americans With Disabilities Act has determined that disabled people have access to family law courts; and, as a system that receives federal funding, state judicial systems are prohibited from discriminating against anyone disabled under the provisions of the ADA. What this means is that while a family court judge may consider your ability to care for your child when ruling, you cannot be denied custody solely based on your disability.
Does It Matter Which State I Live In?
In short, no, it does not matter which state you live in. The Americans with Disabilities Act and Rehabilitation Act are federal regulations; meaning, they apply to all citizens in all states. However, it is not uncommon for local or municipal workers to not be aware of federal regulations when recommending revocation of custody from disabled parents.
“Individualized treatment” is an important legal principle. What this means is that in the eyes of the court, disabled parents must be assessed on a case-by-case basis, rather than be assessed based on generalizations about their disabilities. If a disabled parent has arranged for modifications, or has hired childcare help to assist with daily parenting tasks, these must be taken into consideration by the court as factors in deciding the best interest of the child.
The second important legal principle is “full and equal opportunity.” This principle is intended to ensure that disabled parents are provided with the same opportunities to participate in all programs and services that nondisabled parents have access to. Rather than reducing parental standards for disabled parents, child welfare agencies and family courts should help disabled parents access helpful parental aids. Doing so serves the parents as well as the child, and establishes a more just family court system overall.
When determining child custody, there are certain factors that the courts simply cannot consider. Some examples of factors that courts cannot use in a custody determination include:
- Race: Courts are prohibited from forming a custody determination based on whether one parent is of a certain race, or if they are dating a person of a certain race;
- Religion: Generally speaking, courts are not allowed to base child custody arrangements on religious issues or preferences, or lack thereof such as Atheism. However, there may be exceptions in cases in which the child is being harmed or placed in danger by specific religious practices;
- Gender: Traditionally, family courts automatically awarded child custody to the mother figure, as it was assumed that all mothers were the primary caretaker for all children. However, courts now focus on a broader set of factors to determine child custody and custodial parent arrangements as opposed to relying on outdated social norms regarding gender and gender roles; and/or
- Disability: To reiterate, just because a parent has a legally-recognized disability does not automatically prevent them from obtaining child custody. Instead, courts should look at whether the disability would prevent the child from performing their parental duties if they were granted custody, and what accommodations may be made so that the disabled parent can still parent their child with dignity and autonomy.
Do I Need a Lawyer?
If you are disabled and are experiencing issues obtaining custody of your child, you should consult with an experienced and local child custody lawyer as soon as possible.
An attorney will be best suited to helping you understand your state’s specific child custody laws, and what your rights and legal options are under those laws. Further, an experienced child custody attorney can help you fight any discrimination you may be facing, and will also be able to represent you in court.