Family Law, Parents with Disabilities, and the Americans with Disabilities Act

• Date: 01 January 2019
• Published date: 01 January 2019
• DOI: http://doi.org/10.1111/fcre.12396
• Author: Robyn M. Powell

FAMILY LAW, PARENTS WITH DISABILITIES, AND THE

AMERICANS WITH DISABILITIES ACT

Robyn M. Powell

Parents with disabilities contend with bias within the family law system, often threatening their custody and visitation rights.

The overarching goal of this article is to explore the experiences of parents with disabilities involvedin custody and visitation

disputes and the application of the Americans with Disabilities Act (ADA) in these cases. This article begins with an over-

view of parents with disabilities and their interactions with the family law system. Next, the article examines the ADA and

its applicability to custody and visitation disputes. Finally, the article offers thoughts about strategies that can be utilized by

attorneys to ensure that the rights of parents with disabilities are protected.

Key Points for the Family Court Community:

•Parents with disabilities experience significant discrimination within the family law system.

•The ADA is relevant to custody and visitation disputes and can be used in certain circumstances to protect the rights

of parents with disabilities.

•The legal profession must understand the ADA and its application to the family law system.

Keywords: Americanswith Disabilities Act; Custody;Disability Rights; Family Law; Parents with Disabilities; and Visitation.

I. INTRODUCTION

In 2009, Kaney O’Neill, a quadriplegic mother and veteran, confronted an unanticipated fight

when the father of her son, whom she was estranged from, filed for custody of their ten-week-old

son.

1

Contending that O’Neill was “not a fit and proper person”to care for their son and that her

disability “greatly limits her ability to care for the minor, or even wake up if the minor is

distressed,”the father sought full-time custody of the child.

2

To refute the father’s assertions,

O’Neill pointed to her preparation for motherhood, including adapting her home, obtaining adapted

parenting equipment, and receiving assistance from family members and paid personal assistants.

3

The fight to retain custody endured for more than a year and ended with an agreement that granted

the father visitation rights.

4

Although O’Neill was pleased with the outcome of the case, she told

reporters that she was “disappointed that the courts allow for someone to question your ability to

have custody based on your disability.”

5

Similarly, in 2017, Richard Cachola, a veteran with posttraumati c stress disorder (PTSD), found

himself fighting to retain custody of his three children after refusing to proffer his mental health

records to the court.

6

Prior to this custody dispute, Cachola and his ex-wife shared custody of

their children.

7

However, as relationship difficulties between Cachola and his ex-wife escalated,

his ex-wife filed for full custody, citing his PTSD diagnosis as one reason.

8

Notably, the court

records indicated no signs of violence; “My PTSD has no relationship to my ability to be a

father,”Cachola told reporters.

9

Ultimately, the court denied the ex-wife’s request for full custody

of their children.

10

Nevertheless, the ex-wife was awarded th e final decision-making authority for

the children.

11

Corresponding: rpowell@brandeis.edu

FAMILY COURT REVIEW, Vol. 57 No. 1, January 2019 37–53

© 2019 Association of Family and Conciliation Courts

While dissimilar in some respects, O’Neill’s and Cachola’s respective cases elucidate a common

and continuing phenomenon affecting parents with diverse disabilities—including intellectual and

developmental disabilities, psychiatric disabilities, physical disabilities, and sensory disabilities—

across the United States and beyond.

12

Indeed, parents with disabilities contend with substantial

and persistent bias within the family law system, often threatening their custody and visitation

rights.

13

Notably, although the Americans with Disabilities Act (ADA)

14

was signed into law nearly thirty

years ago, this comprehensive civil rights law has done little to protect the parenting rights of peo-

ple with disabilities, particularly in the area of family law.

15

Undeniably, there are only limited cir-

cumstances in which the ADA can be leveraged in custody and visitation disputes. Nonetheless, I

contend that, when used properly, the ADA can serve as an important tool in family law attorneys’

toolboxes. Hence, it is critical for family law practitioners to comprehensively understand the ADA,

including both its strengths and limitations.

This article examines the experiences of parents with disabilities involved in custody and visita-

tion disputes and the application of the ADA in these cases. Part II provides an overview of parents

with disabilities and their interactions with the family law system. Next, Part III examines the ADA

and its applicability to custody and visitation disputes vis-à-vis individualized treatment, courtroom

accessibility, accessible and appropriate parenting evaluations, and legal obligations of attorneys.

Part IV concludes by highlighting strategies that can be utilized by attorneys to ensure that the

rights of parents with disabilities are protected.

II. FAMILY LAW AND PARENTS WITH DISABILITIES

The best interests standard…explicitly used as the standard for adjudicating children’s interests in pro-

ceedings evaluating parental care[] is not properly a standard. Instead, it is a rationalization by decision-

makers justifying their judgments about a child’s future, like an empty vessel into which adult percep-

tions and prejudices are poured.

–Hillary Rodham

16

The United States has a long and tragic history of preventing people with disabilities from creating

and maintaining families, based on deeply held presumptions about the parental fitness of disabled

parents.

17

Compulsory sterilizations—rooted in eugenics ideologies—grew in popularity in the

United States and elsewhere throughout the twentieth century and proffered a legal means to con-

strain people with disabilities, namely intellectual and psychiatric disabilities, and others deemed

unfit from procreating.

18

Over time, forced sterilizations decreased and the curtailment of the rights

of disabled people to form families grew into laws that restricted marriage.

19

Although neither prac-

tice has been wholly eliminated, today the belief that people with disabilities should not have chil-

dren is manifested through discriminatory child welfare, family law, adoption, and reproductive

health care policies and practices that presume parental unfitness.

20

This part explores the evolution

of parenting rights for people with disabilities as well as the contemporary experiences of parents

with disabilities and their families. Thereafter, this part describes the family law system and exam-

ines the experiences of parents with disabilities when they interact with the family law system,

including its inherent bias toward these families.

A. PARENTING WITH A DISABILITY: AN EVOLUTION OF RIGHTS AND EXPERIENCES

Shamefully, the United States has a tragic history of implementing policies and practices that

restrict people with disabilities from forming families. The eugenics movement began in the early

twentieth century and resulted in those deemed “socially inadequate,”

21

particularly women with

intellectual or psychiatric disabilities, undergoing forced sterilizations.

22

Rooted in the idea that the

“human race [could] be gradually improved and social ills simultaneously eliminated through a

38 FAMILY COURT REVIEW