Legal Capacity at a Crossroad: Mental Disability and Family Law

• Date: 01 January 2019
• DOI: http://doi.org/10.1111/fcre.12394
• Published date: 01 January 2019
• Author: Jasmine E. Harris

SPECIAL FEATURE: SELECT ARTICLES FROM THE 2018

ASSOCIATION OF AMERICAN LAW SCHOOLS PROGRAM

ON LAW AND MENTAL DISABILITY

LEGAL CAPACITY AT A CROSSROAD: MENTAL DISABILITY

AND FAMILY LAW

Jasmine E. Harris

In this introductory essay to the Special Issue, I argue that both family law and disability rights law scholars should examine

a key point of intersection across areas: legal capacity or the law’s recognition of the rights and responsibilities of an individ-

ual. For example, parental termination proceedings center on parental fitness and functional capabilities. I contextualize the

articles in the Special Issue by Leslie Francis and Robyn Powell on the role of reasonable accommodations for parents with

disabilities in parental termination proceedings. In addition, I call upon legal scholars, family law courts, and practitioners to

reimagine governing legal standards in family law according to principles of universal design to shift the baseline capabilities

associated with parenting and parental fitness.

Key Points for the Family Court Community:

•Legal capacity is an underexplored intersection between family law and disability rights law.

•There are two ways to think about applying a critical disability lens to family law proceedings such as parental rights

terminations. First, courts and practitioners should consider the ways in which disability rights laws,such as the Amer-

icans with Disabilities Act, require courts to apply differential standards of parental fitness as reasonable accommoda-

tions. Second, and more radically, rather than providing reasonable accommodations and maintaining the current

normative baselines, the author challenges institutional designers to consider principles of universal design that chal-

lenge the normative standards themselves.

•This introductory article contextualizes the articles in this Special Issue of Family Court Review.

Keywords: Americans with Disabilities Act; Convention on the Rights of Persons with Disabilities; Developmental Disabil-

ity; Intellectual Disability; Legal Capacity; Parental Fitness; Parental Rights; and Universal Design.

I. INTRODUCTION

Legal capacity, the law’s recognition of an individual’s personhood and agency, represents a con-

ceptual cornerstone for law and mental disability scholars.

1

The success of disability rights move-

ments in fostering greater public support for economic and social rights for people with mental

disabilities has generated, at least rhetorically, broader support for legal recognition of the decisional

capacity of people with mental disabilities

2

in political and economic arenas, such as voting

3

and

employment.

4

Furthermore, the scope of scholarly inquiry into decisional agency has expanded in

recent years from curbing state encroachment in private decision-making to crafting positive theo-

ries of social rights for people with mental disabilities in sexuality, reproduction, marriage, and par-

enting.

5

However, disability exists in the family law literature primarily through children with

disabilities in parental termination, visitation, divorce, and child support proceedings.

6

Mental disability law scholars

7

and family law scholars

8

have yet to fully engage with each other

in developing an intersectional approach that emphasizes the decisional agency of parents with

Corresponding: jeharris@ucdavis.edu

FAMILY COURT REVIEW, Vol. 57 No. 1, January 2019 14–20

© 2019 Association of Family and Conciliation Courts