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Why parents with disabilities still face challenges getting custody in divorce

On Behalf of | Feb 16, 2021 | Child Custody

Like millions of other parents with disabilities, you’ve been parenting your child since they were born. While it might sometimes amaze other people that you can do it, it’s never been a problem for you or your child.

Now you’re divorcing, and your spouse is claiming that you shouldn’t have the custody rights you’re seeking because of your disability. Maybe they’re playing that card because they want more access to their child. Maybe they just want to get back at you. Perhaps they genuinely believe you can’t care for your child alone – even if you split custody equally.

Even though discrimination against people with disabilities is illegal in many areas, like employment, laws like those covered by the Americans with Disabilities Act (ADA) often can’t help parents. Those with physical and/or intellectual disabilities are more likely to lose custody of their children than those without disabilities.

Judges have leeway to decide what’s in a child’s best interests

According to the American Bar Association, “The fundamental right to parent without interference is protected by the U.S. Constitution and balanced by the judicially recognized power of the state to interfere to protect the well-being of its children.”

That second half is where many divorcing parents with disabilities have problems getting the custody they deserve. If a judge doesn’t believe a parent is able to care for a child on their own, they may consider it to be in that child’s best interests to deny them custody and potentially even limit their visitation rights.

You and your attorney may need to provide evidence of your ability to be a good parent. Be prepared to explain (and even demonstrate) how you do it. If a parental assessment is ordered, you may need to show a social worker or other professional how you handle basic tasks like helping your child dress or preparing their meals – even though you could do these things in your sleep. You may call in witnesses like friends and family who have seen you care for your child on your own.

It’s important to recognize that you may need some additional help from service providers or family members with your spouse no longer around. If you do, it’s wise to have this help lined up. The more confident and prepared you are when it comes to parenting on your own, the better chance you have of prevailing in court.