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Disability and Child Custody - Disabilities
and Disabled Parent Child Custody Laws

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How can a parent's disability have an effect on child custody and visitation? There are many states that remain silent on this issue or do not have adequate laws to protect disabled parents in child custody proceedings. However, there has been much progress on disabled parents and child custody laws as several courts have ruled that a parent's disability cannot be the sole basis upon which custody is denied (In re Marriage of Carney, 24 Cal. 3d 725, 598 P.2d 472 (Cal. Sup. Ct. l979)). However, child custody laws vary from state to state so you'll want to become familiar with the laws in your state on this subject.

For example, existing family code and child custody laws in California do not adequately address the issue of disabled parents and child custody. As a result, disabled parents in California with minor children going through a separation or divorce are left exposed to unnecessary and often expensive litigation even in situations where the disabled parent had been successfully parenting their children for many years prior to the separation or divorce.

In late August 2010 however, California Governor Arnold Schwarzenegger signed SB 1188 into California law to address this issue. The law goes into effect January 1, 2011. SB 1188 now shifts the burden of proof onto the parent who raises the disability as an issue and the states. SB 1188 will afford disabled parents substantial protection in California family law cases as a disability cannot form the basis of custody or visitation orders. SB 1188 will add Section 3049 to the California Family Code.

3049. In any proceeding to determine child custody or visitation under this part, in which at least one parent is disabled as defined by the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), a court shall not use the disability of that parent as the basis of an award of custody or visitation to another party unless that party establishes by clear and convincing evidence that a grant of custody or visitation to the disabled parent would be detrimental to the health, safety, and welfare of the child.

Minnesota child custody laws and statute on best interest of the child Minnesota Statute 18.17 addresses the issue of disabilities of a proposed custodian and child custody.

(9) The mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custody arrangement is not in the best interest of the child;

Idaho child custody laws and statute on best interest of the children Idaho Statute 32-717 addresses the issue of parent disability and child custody.

(2) If the parent has a disability as defined in this section, the parent shall have the right to provide evidence and information regarding the manner in which the use of adaptive equipment or supportive services will enable the parent to carry out the responsibilities of parenting the child. The court shall advise the parent of such right. Evaluations of parental fitness shall take into account the use of adaptive equipment and supportive services for parents with disabilities and shall be conducted by, or with the assistance of, a person who has expertise concerning such equipment and services. Nothing in this section shall be construed to create any new or additional obligations on state or local governments to purchase or provide adaptive equipment or supportive services for parents with disabilities.

No matter what state you are in there are some important factors to consider when it comes to disabled parents and child custody including but not limited to the severity of the illness, impact any side effects may have on the child or parents ability to perform parental duties, degree of control of illness, the presence of needed supportive services, adaptive equipment or other competent adults in the home that will enable a disabled parent to provide proper care for their child and carry out their parental responsibilities. It is important to examine what effect, if any, a person's disability may have on his/her ability to care for their children under their specific set of circumstances. A disabled parent's fitness to carry out parental duties as it relates to the overall best interest of the child is generally the standard a court will use to decide custody.

Because each situation involving handicapped or disabled parents is unique, decisions regarding custody and visitation should be addressed on an individualized basis. Unfortunately, these cases can be costly as it can involve evaluations and expert opinion to dispel allegations and misinformation. Expert testimony in these cases is often necessary at a custody hearing, especially when it is anticipated that misinformation about the disability and parent's ability to provide care for their child may be presented. Legal counsel for the parent with a disability should be prepared to produce evidence about the disability itself in order to insure that the court understands basic facts about the condition and its manifestations.

The following cases may be of interest to cases involving disabilities and child custody:

In re Marriage of Carney, 24 Cal. 3d 725, 598 P.2d 472 (Cal. Sup. Ct. l979) the first major case to rule that a disability may not be the sole basis for denying custody; Moye v. Moye 627 P. 2d 799 (Idaho Sup Ct. l981) in which the Idaho Supreme Court held that a trial court's overemphasis on the mother's epilepsy rendered its custody award to the father an abuse of discretion; In re W. O., 88 Cal. App.3d 906 (l979) in which a mother's epilepsy was rejected as a basis upon which to remove children from her custody; and In re Adoption of Richardson, 25l Cal. App.2d 222, 59 Cal. Rptr. 323 (l967) in which the denial of the right to adopt a child merely because of prospective parent's disability was found to be unconstitutional.

Other cases in which courts have discussed the effect of a parent's disability on a custody decision include:

Hatz v. Hatz, 97 Ad. 2d 629, 468 N.Y.S. 2d 943 (A.D. 3 Dept. l983); Rains v. Alston, 576 S.W. 2d 505 (Ark. 1979); In re McDuel, 11 Family Law Rptr 1508 (MI Ct. App. l965); In re Marriage of Levin, 102 Cal. App. 3d 981 (l980); People in the Interest of B.W., 626 P. 2d 742 (Colo App. l981); and Warnick v. Couey, 359 So. 2d 801 (Ala. l978). A law review article which may be helpful is "The Epilepsies: Their Effect on the Biological Family, The State-Decreed Family, and Civil Liability in California," l3 San Diego L. Rev. 978 (l976). Of particular relevance are pages l002-l0ll, especially footnotes l82-l87 and related text.

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