If you are involved in a child custody or visitation case and have a physical or mental disability/condition, you may be worried that the other party or the court may try to use that against you. However, the court is not allowed to discriminate or solely base its decision on whether a parent has a disability. The court also cannot discriminate based on a parent’s sex, sexual orientation, gender identity, or gender expression.
While the court cannot discriminate because of parental disability, they can consider its impact on the child’s best interests. If a parent’s condition may have a lasting negative impact on their child or affect their parenting abilities, the court may deny custody.
If you have a physical disability, you can submit evidence to the court that proves your disability may help in your child’s development. You may also be asked to complete a parenting assessment or evaluation that involves having an evaluator meet with a parent, complete a home assessment, investigate what adaptive parenting equipment and support you have, etc. Working with an attorney who is knowledgeable of both family law and ADA law can help you ensure you have an accessible parenting assessment and evidence to strengthen your case.
California Family Code § 7827 defines mentally disabled as a parent that “suffers a mental incapacity or disorder that renders the parent unable to care for and control the child adequately.” Under this statute, a parent with a mental disability may be denied child custody if it is proven their disability affects their ability to parent the child. Thus, the severity of the condition has an impact on custody/visitation determination.
If a parent has a disability, the court will also consider:
As with any child custody/visitation case, the court will also consider and prioritize the best interest of the child, which includes their welfare and safety. Parents with disabilities can still be denied custody if there are other factors in their life that affect the best interest of the child.
In determining the best interest of the child, the court will review any relevant factors, including but not limited to:
With over six decades of collective experience, the attorneys at Creative Family Solutions, Cianci Law, PC are prepared and available to help you or a loved one with your custody case. If you have a physical or mental condition that you believe the court will consider, our attorneys can help you understand potential case outcomes and concerns. We can also help you develop a personalized case strategy that highlights how your condition does not affect your parenting abilities or your child’s best interests.
To discuss your case with a member of our team and learn more about how we can help you, call (916) 797-1575 or complete our online contact form today.
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