Parents with disabilities face unique challenges during custody cases. One parent may use the other’s disability against him or her to try to convince the courts to grant custody to the parent that does not have a disability. While the government forbids discriminating against someone because of a disability, the courts have the right to take disability into account if it could potentially interfere with the parent’s ability to care for the child.
The Best Interest of the Child Standard
Child custody laws vary from state to state, but most courts, including those in California, handle divorce and custody cases using the legal standard of best interest of the child. The courts will determine child custody, legal rights, parental responsibilities and visitation according to the child’s best interest. The custody arrangement that best fulfills the child’s needs will be the one the judge chooses during a divorce case. A judge can consider several factors when deciding which parent is best suited for primary custody, or else grant a 50/50 division of parenting time.
A judge can analyze issues such as how established the child is in his or her community or school, how old the child is, what the child’s relationship with each parent looks like, each parent’s living situation, and a history of substance abuse or domestic violence when determining child custody. The child may also have a say in whom he or she lives with if the child is old enough to make this decision. Overall, however, the decision will come down to one main question: what living arrangement will be in the best interest of the child?
Disabilities and Custody Decisions
A physical disability could become a relevant point during a custody case if you cannot effectively parent. If you cannot pick up or handle an infant, for example, your spouse may use this as an argument for why you would not be fit to parent the child alone. You and your attorney will have the opportunity to argue the validity of this point, however, if your spouse does try to use a physical disability against you. For instance, you could take a special occupational therapy program for parents and use this as proof that you have what it takes.
If your spouse can prove you have a mental disorder, a judge may also take this into consideration during a custody case. The judge will likely request more information about the disability, such as letters or diagnoses from psychologists. The judge may also hear testimony from your friends and family members about your abilities to parent. Mental disabilities may affect your custody case if the judge believes they could create a dangerous or unhealthy environment for your child. If you suffer manic episodes, for example, a judge may see this as a potential problem while raising a child.
Types of Custody Arrangements
In California, custody cases are generally not black and white. A physical handicap will not be the sole determining factor in whether you have custody of your child. The courts will try their best to keep both parents in a child’s life rather than giving one parent sole custody and preventing the other from visiting the child. If you have a physical disability that interferes with your ability to care for your child enough for a judge to grant primary custody to your other spouse, you could still have custody certain days of the week. Joint custody is the most popular type of agreement the courts will enforce in California.
If you and your spouse can work together on a custody arrangement, a judge will most likely sign off on what you come up with. If your spouse is fighting you for full custody, however, you may need to hire a lawyer to help defend your side of the case. Your lawyer could help you prove that even with a physical handicap, you are a fit parent and able to fulfill the needs of your child. A San Diego child custody attorney could improve your odds of securing joint or sole custody of a child as a parent with a physical disability during a divorce case.
