Disabled Parents and their Custody Rights

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Child custody disputes are a complex process. If you are a disabled parent, or on SSDI, SSI, or VA Benefits, you might feel as if you are at a disadvantage in receiving a fair outcome in a custody trial. It can seem like no one believes you are capable of caring for your children. A parent’s responsibilities extend past what society, the Court, and the guardian ad litem sees, though. Parenting is not just about taking your children places, practicing sports with them, or playing catch outside. It is about raising children, supporting them, and caring for their well-being. Parents with disabilities can retain custody of their children. It can feel like an uphill process, but you do not have to go through it alone. The Virginia and North Carolina family law attorneys at Melone Hatley, PC are are your partners through this challenging time. 

What is the Americans with Disabilities Act for Parents?

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Two federal statutes, Title II of the Americans with Disabilities Act (ADA) of 1990 and Section 504 of the Rehabilitation Act of 1973, protect disabled parents from discrimination by child welfare agencies and family courts. Family courts can’t deny access to the children of parents with disabilities. They may not make decisions that have a negative impact on a parent solely based on that parent’s disability. This includes custody decisions that may determine where a child lives and who has visitation rights. Every parent must have the same access to child welfare programs.

These legal protections apply to parents with physical disabilities, intellectual or mental disabilities, and various mental health issues. Courts may not dismiss a parent as a suitable caregiver for their child based only on the fact that they have a disability. Instead, courts must take a broader look at the parent and how the disability affects them:

  • What limitations does the parent’s disability impose on them?
  • How has the parent adapted to any limitations caused by their disability?
  • Does the parent have access to equipment, technology, treatments, or other means that can help them cope with their disability?
  • Do the parent’s family members support them? What is their relationship with the parent, and how could that assist the parent in caring for the child?

What Will the Court Consider?

The main consideration for any family court, when it makes a custody determination, is the “best interest of the child.” All custody arrangements must serve a child’s best interests. A parent’s disability may not, however, be a factor that weighs against that parent in most cases. Each state has its own set of family laws, so the standards for determining a child’s best interests will differ in Virginia and North Carolina.

Virginia Courts

In Virginia child custody cases, a court’s assessment of a child’s best interests pursuant to Virginia Code § 20-124.3 may include the following:

  • The age of the minor child or children;
  • The child’s physical and mental health;
  • The assets of the parents;
  • Each parent’s physical and mental ability;
  • The needs of the children;
  • The relationship between each parent and the child or children, with attention to each parent’s ability to meet the child’s needs and promote their well-being;
  • Any history of domestic violence or substance abuse that has affected or may affect the child; and
  • Other issues that the court deems relevant.

North Carolina Courts

Family courts in North Carolina also base custody decisions on the best interests of the child pursuant to N.C. Gen. Stat. 50-13.2. North Carolina law, however, does not provide as detailed a definition of the term. Factors that courts may consider include:

  • Each parent’s ability to care for the child; and
  • The child’s relationship with each parent.

Children can speak to the judge about their preferences. The child’s wishes do not control the judge’s decision, but it is a factor they will consider.

Why Disabled Parents Should Get a Parental Assessment

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A parental assessment can provide an evaluation of a parent’s ability to care for their child. A person who has specialized education and training in evaluating people with disabilities may perform the assessment. They should do so in the parent’s regular home environment and can consider both physical and intellectual disabilities.

The assessor should follow the Guidelines for Assessment and Intervention with Persons with Disabilities published by the American Psychological Association. Child welfare agencies and organizations that perform parental assessments must abide by requirements set by Title II of the ADA. Assessments must be accessible to all parents. They must assess each parent on an individual basis and make a fair evaluation of each parent’s ability to care for their child or children. Assessors may not base their findings on stereotypes about disabilities or their effect on one’s ability to be a parent.

A positive assessment can be a deciding factor in a custody case. To grant custody rights to parents, family court judges need to see evidence that those parents will be able to meet the child’s needs and serve their best interests. An assessment from an impartial professional can go a long way toward convincing a judge of that.

Types of Child Custody

Family laws in Virginia and North Carolina identify four different types of child custody.

Sole Legal Custody

One parent has the exclusive legal right to make decisions affecting the child’s health, education, and welfare.

Joint Legal Custody

Both parents share the right to make decisions about the child’s health, education, and welfare. This means the parents must consult with one another before making major decisions.

Sole Physical Custody

One parent may determine where the child will live. The other parent, commonly known as the non-custodial parent, may have other custody rights, as well as visitation rights with the child.

Primary Physical Custody

This term refers to the parent with whom the child lives most of the time. Even if parents have joint physical custody rights, splitting their time with the child 50/50 is usually not practical. This is especially true once the child reaches school age. As a result, the child often ends up living with one parent more than the other.

Concerned About Your Custody Dispute as a Disabled Parent?

A parent with disabilities is just as capable of loving and caring for their child or children as any other parent. Some disabilities might make parenting challenging, but those very difficulties often place parents with disabilities in the perfect position to teach their children how to live a good and full life.

Laws like the ADA protect parents with disabilities from discrimination and guarantee them a level playing field. Unfortunately, family courts and child welfare organizations may still harbor many stereotypes and misconceptions about how mental or physical disabilities can affect parents. However, help is available so you can present the best possible case for your parental rights. The legal team at Melone Hatley can help oversee that discrimination does not occur during your child custody case.

Father using sign language with his son

Your Disability is Not the Sole Factor in a Custody Dispute

Living with a disability presents many challenges. Still, it should not keep you from having a full relationship with your children. If you are involved in a child custody dispute, and you are worried that your disability may affect your custody rights, you need an experienced child custody attorney who will advocate for your rights. The attorneys at Melone Hatley, PC are here to help clients throughout Virginia and in the Charlotte area of North Carolina. Our firm offers free eBooks and free advice videos to help you understand your rights. You may schedule a consultation today by calling the firm at 800-479-8124 or using the online contact form.

Rebecca Melone

Written By Rebecca Melone

Rebecca Melone established Melone Hatley P.C. in 2014 with the goal of helping families with a range of legal services from estate and family law to traffic tickets and misdemeanor criminal matters.
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