Disabled parents often face an uneven playing field advancing their rights in child custody disputes. Massachusetts lawmakers last week heard advocates for disabled parents’ rights. They appeared to testify to endorse a proposed law protecting against such discrimination.
PROPOSED MASSACHUSETTS LAW
In a hearing before the Senate Judiciary Committee, backers voiced support, urging passage of Senate Bill 983. Sen. Joan Lovely (D-Salem) sponsors the measure. Rep. Kay Khan (D-Newton) introduced the House version. If enacted, the legislation would bar a parent’s disability from being considered a negative factor in determining custody of a minor child. A party suggesting otherwise must prove the parent’s disability harms the child. Moreover, the party must show accommodations for the disabled parent wouldn’t prevent or lessen the harm to the minor child. Such accommodations include adaptive parenting equipment and supporting parenting services.
Parents with disabilities are as capable caregivers as unimpaired parents, a Disability Policy Consortium advocate told Committee members. Yet, he testified, disabled parents lose custody rights to their children at an inordinate rate. Although 6 percent of parents in the U.S. have disabilities, their children comprise 19 percent of the foster care system.
BIAS AGAINST PARENTS WITH DISABILITIES
Across the nation, laws in 37 states permit termination of parental rights on disability-related grounds. Many such statutes contain outdated terms and vague definitions. These laws stress the parent’s disability rather than the parent’s conduct.
A Christopher & Dana Reeve Foundation report in May 2016, finds 4.1 million parents with disabilities in the U.S. Roughly 10 percent of American children receive care from a parent with a disability.
OTHER STATES’ PARENTAL DISABILITY LAWS
Massachusetts seeks to join states already confronting bias in custody cases and pursuing disabled parents’ custody rights. Since 2011, California Family Code Section 3049 prohibits a parent’s disability from being used to form the basis of custody or visitation orders. The California law requires the parent who raises the disability issue, to prove it impedes the disabled parent’s care-giving ability.
Missouri law bars the child welfare system from discriminating against parents with disabilities. Idaho protects disabled parents’ rights through a comprehensive package of laws. Other states require courts to establish a causal link between a parent’s disability and mistreatment of a child. Only then can disability be offered as a basis to terminate parental rights. Still other jurisdictions mandate courts to weigh testimony about adaptive equipment and alternative skills used by parents with disabilities in settling custody disputes.
THE CHILD’S BEST INTEREST STANDARD
Under the Commonwealth’s child custody statute judges base custody decisions on the “best interest of the child” standard. Courts evaluate a minor child’s relationship with both parents and relatives, and the child’s school performance in awarding custody. Other custody factors judges examine include parental history of substance abuse, child abandonment, and with an older child, the youngster’s personal preference.
Each custody dispute is unique. The child’s best interest standard varies case-by-case. Judges look at the minor child’s quality of life. However, an earlier blog post stresses that Courts also review the ex-spouses’ physical and mental well-being, parenting style and home environment.
In a 1998 Appeals Court opinion a husband unsuccessfully challenged a Probate Judge’s award of sole physical custody to his former spouse. The ex-wife is wheelchair-bound from multiple sclerosis. The husband argues the wife’s severe medical condition prevents her from caring for their minor child. The wife prevails. The appellate court finds her better able to care for the minor child in the marital home with a full-time personal care attendant’s help.
COURT ACCESSIBILITY TO PARENTS WITH DISABILITIES
Probate Courts are mandated by state and federal laws to uphold the rights of people with disabilities and grant them access. Courts must give the disabled the same fair chance to receive help from programs and services that non-disabled people are eligible to benefit from. This may, for example, include accommodations, such as sign language interpreters. Laws such as The Rehabilitation Act of 1973 and the Americans With Disabilities Act forbid any program that receives federal financial support from discriminating against a person with a disability. Such programs cannot exclude a disabled person from participating in such a program or activity because of the disability. Moreover, surcharges cannot be levied on people with disabilities to pay the costs of actions taken to guarantee nondiscriminatory treatment.
A groundswell of states’ legislatures is pressing to involve social workers and the disability community to educate courts about disability and parenting. This will assist courts to decide custody matters and overcome past misconceptions. “Being blind doesn’t keep someone from hugging their child, teaching good morals, helping with homework or chasing away monsters under the bed,” a disability advocate testified at last week’s hearing.
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