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.
Indeed, parents with disabilities contend with substantial
and persistent bias within the family law system, often threatening their custody and visitation
Notably, although the Americans with Disabilities Act (ADA)
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.
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.
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
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.
Over time, forced sterilizations decreased and the curtailment of the rights
of disabled people to form families grew into laws that restricted marriage.
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.
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,”
particularly women with
intellectual or psychiatric disabilities, undergoing forced sterilizations.
Rooted in the idea that the
“human race [could] be gradually improved and social ills simultaneously eliminated through a
38 FAMILY COURT REVIEW