Recently on our divorce forum a user asked, “I have been severely injured in a car accident and can no longer walk. I am involved in a child custody battle with my spouse. How will my disability affect my ability to gain custody of my children?”
Parents with disabilities often face custody court battles when they divorce, often having to spend thousands of dollars and months to prove that their disability does not limit their ability to care for their child. If you have a disability and need help combating the bias that pervades the family law system it’s important to talk to an attorney who specializes in divorce and custody cases.
Disability and child custody
The Constitution protects the fundamental right to parent without interference from the state, and state courts have held that the “parent-child bond was not merely the ability to engage in physical interaction” but rather its “essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond.”
Unfortunately, however, if the parents cannot agree on a child custody plan after divorce, it’s not unusual for the state to step in and make custody decisions. Assuming the state makes the decision, the decision will be made based on state laws and statutes with many states using the nebulous “best interest of the child” criteria to determine which parent is more able to care for the child’s physical, emotional, intellectual and basic health and safety needs.
Although many different factors are considered to determine the best interest of the child, some states do consider disability a factor. For example, some courts have decided that a parent’s deteriorating condition, disability or premature death are valid questions the court must consider prior to awarding custody. Furthermore, family courts often take into account the physical and mental fitness of both parents prior to making custody decisions.
State laws and best interest of the child
Whether or not you will be allowed full custody of your children will be decided by the family court in your state, and your state will have their own list of factors they will consider when deciding custody.
Typical factors for child custody decisions:
- Which parent best meets the physical, emotional, intellectual and basic health and safety needs of the child?
- What does the child want?
- Who cared for the child prior to the divorce?
- Was there any history of domestic violence or substance abuse?
- What are the resources of both parents to care for the child?
- Has either parent been deemed unfit to care for the child?
There has been criticism of the current standard for deciding child custody by the states with some arguing factors and standards are too vague, leading to judicial bias which may have significant and detrimental consequences for a parent with a disability
With this in mind, it’s a good idea to hire a lawyer who can combat any stereotypes that the courts may have about your capabilities to parent and present evidence your child will not be forced to provide care for you, but instead, you have the capacity to care for your child despite your disability.
Latest posts by Beth (see all)
- Steps to ensure a prenuptial agreement is enforced - May 17, 2017
- Divorce options- I don’t want to fight it out in court. - May 10, 2017
- Establishing paternity so child will get SSDI auxiliary benefits? - May 3, 2017