Disabled Parent’s Rights
Ensuring the Rights of Parents with Disabilities and Their Children
Modern psychology confirms that the core of parenting is not found in the daily routine of carpools and soccer practice. Rather, the heart of being a parent lies in the ethical lessons, intellectual guidance, and emotional input that parents provide their children during the early stages of life. The basis of this input starts with the parent’s own life experiences, which they pass on to their children.
Parents with disabilities are more than capable of teaching their children lessons about how to live, how to treat others, how to set high standards for themselves, and what values are most important. When it comes to caring about their children, putting children’s best interests first, and providing a safe and stable home, parents with disabilities are no different from any other parent. As long as the parent is able to provide the necessary parenting for his or her child, a disability is no reason for the court to deny custody or visitation rights.
However, despite having the same legal rights as any other parent, parents with disabilities are often discriminated against when it comes to family law issues. Case law has established that you must prove one parent is “unfit’ before terminating custody or visitation rights, but in reality, parents with disabilities are often treated unfairly in family courts. When an ex-spouse, opposing attorney, or judge tries to use a parent’s disability as an automatic reason to deny custody or visitation rights, it is important to have an experienced family law attorney on your side.
If you have questions or concerns about your rights as a parent with disabilities, the Law Office of Heath L. Baker is here to help. Attorney Baker is an experienced legal advocate, and he is proud to provide aggressive representation for clients throughout Southern California. The legal experts at the Law Office of Heath L. Baker will fight tirelessly to protect your rights as a parent, and we refuse to let courts use your disability as the sole justification for denying custody or visitation. Call (951) 222-2228 or contact us online to schedule a free consultation today.
California courts always work to put the child’s best interests first in family law matters. Family Code section 3020 states that “it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children.”
The court considers a wide range of factors to determine the “best interest of the child,” including:
- The relationship between both parents and the children
- The primary or custodial parent
- The amount of time spent with the child by each parent
- The ability of each parent to care for the child
- The age and health of the child
- Any history of abuse, violence, substance abuse, or other negative environmental factors
Title II of the Americans With Disabilities Act mandates people with disabilities have access to family law courts. In addition, as a system that receives federal funding, state judicial systems are prohibited from discriminating against anyone with disabilities under the provisions of the ADA. Therefore, while a family court judge may consider your ability to care for your child when making his or her ruling, you cannot be denied custody solely based on your disability.
Under California law, there are four different types of child custody:
- Physical custody, which determines where the child will live. When a parent has sole or primary physical custody, the child will live in his or her home for the majority of the time. If the parents live close to each other, they may share joint physical custody, which allows both parents to live with the child while (ideally) maintaining a normal routine.
- Legal custody, which refers to the right to make decisions about the upbringing of the child. Parents are often awarded joint legal custody o they can both make important decisions about matters like religion, medical care, and education.
- Sole custody, which awards physical and/or legal custody to one parent. This is most commonly awarded when the court finds one parent to be unfit due to drug use, alcoholism, a history of abuse or neglect, or other reasons. Family courts will typically try to avoid sole custody arrangements because it cuts one parent out of the child’s life completely; a preferable alternative (in the eyes of the law) is to award one parent physical custody but award joint legal custody and visitation rights to the other parent so he or she can still be involved.
- Joint custody can mean one of three things: joint legal custody, joint physical custody, or joint legal and physical custody. Joint legal custody is common and allows both parents to be involved in major decisions. Joint physical custody arrangements are also common, in which the child may have assigned days or weekends to spend with each parent. Joint custody arrangements require good communication and cooperation between parents, as any disputes over sharing time can negatively impact the parents’ relationship with each other and with the child.
Visitation rights, possibly even more so than child custody rights, cannot be based on arbitrary discrimination against a parent with a disability. While the court may use the ability to care for a child as a factor in the custody decision, having a disability should not have a major impact on a parent’s ability to visit his or her child. Unless the court can prove that the parent is otherwise unfit (e.g. because of drug addiction, alcoholism, abuse, etc.), every parent has the right to visitation—regardless of disability.
Other than unfitness to parent or outright discrimination, a family court judge should have no trouble awarding visitation to a parent with a disability. In fact, California courts typically see visitation, like joint legal custody, as in the child’s best interests; in the eyes of the court, it is always preferable for both parents to be involved in the child’s life in some way (absent any evidence of abuse or other harmful conduct). If a judge has qualms about a disabled parent’s ability to care for the child in a full- or even part-time capacity, it is typically in the child best interests to at least allow regular visitation.
Contact the Law Office of Heath L. Baker
A parent’s ability to guide and teach his or her child far exceeds their physical ability to interact with the child. Although the court may take health and physical considerations into account, a judge is not allowed to base a custody or visitation decision solely on the presence of a parent’s disability. A disability, in and of itself, is not just cause for denying custody or visitation rights to anyone.
If you have questions about your rights as a parent with a disability, the Law Office of Heath L. Baker is here to help. Call (951) 222-2228 or contact us online to schedule a free consultation to discuss child custody, child visitation, or child support issues as they pertain to parents with disabilities. We are proud to represent parents with disabilities in Riverside and throughout Southern California, and we will work tirelessly to ensure family courts do not shrug off your legal right to parent.