California Courts Review of Disability in Child Custody Decisions

January 26, 2013 (Press-News.org) Going through a divorce is one of the most stressful events. Difficult decisions involve where a child will live and when each child will spend time with each parent. For a parent with a mental or physical disability there may be questions or fears surrounding negotiation of child custody.

While many would assume that disabilities would not come up during divorce proceedings this is not always the case. As each parent seeks the strongest argument to obtain custody of a child, an impairment never questioned while the couple was together may crop up in a custody request.

Unfortunately, as evidenced in an Illinois case, a quadriplegic Navy vet mother spent 18 months fighting against her ex for custody of their child. When the infant was 10 weeks old, the father argued that the mother was not fit to care for their child because of her disability.

The mother was able to prove that she was prepared to parent the baby by showing that she had adapted her home, purchased specialized child-care devices and had assistance available as needed.

In a recent report released by the National Council on Disability, the independent federal agency details barriers that exist for parents with disabilities. A major conclusion of the report is that the U.S. legal system does not adequately protect the rights of parents with disabilities. The importance of the issue is underscored by agency estimates that 6.1 million children have a parent with a disability.

Nationally, the agency notes a patchwork of laws among the states as one of the problems. The report, however, recognized California specifically for legislation protecting the rights of handicapped parents.

What role does a parent's disability play in California child custody determinations?

In 2010, California enacted a provision in respect to custody and visitation determinations that involve a disabled parent. The legislation in effect codified a California Supreme Court case that held it was not permissible for a trial court to rely only on a physical handicap to justify a finding that a parent was unfit as a parent. The court set out an analysis for trial courts that requires review of the following:
- What are the actual and potential physical capabilities?
- How does the individual cope with the disability?
- In what ways have other family members adjusted to the handicap?

The issue of health or physical condition should be one of minor importance in the analysis of what will be in the child's best interest. In one California case, a father's paraplegia was not enough to deny him custody.

Issues related to custody are fraught with emotion. An experienced California divorce attorney represents your interests. Arguments made to the court and evidence submitted does make a difference in the outcome of a divorce case. Seeking the counsel of a lawyer is one way to present your case in the best light.

Article provided by The Law Offices of Burch and Coulston, LLP
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