Family Law and Disability: Parents with Disabilities

The right to care for and raise one’s own children is among the most fundamental rights parents have. Parents with disabilities frequently experience discrimination in child protection proceedings based on stereotypes and presumptions about their parenting capacity. Despite these persistent stereotypes, individuals with disabilities are capable of caring for their children, particularly with appropriate services and supports when necessary. Yet parents with mental health, cognitive, or other disabilities often find themselves fighting to maintain custody of their children or prevent their parental rights from being terminated.

According to a 2012 report from the National Council on Disability, in custody cases, "removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; where the parent has an intellectual disability, 40 percent to 80 percent. In families where the parental disability is physical, 13 percent have reported discriminatory treatment in custody cases. Parents who are deaf or blind report extremely high rates of child removal and loss of parental rights. Parents with disabilities are more likely to lose custody of their children after divorce, have more difficulty in accessing reproductive health care, and face significant barriers to adopting children."

Assessment of Parenting Competency

At times, child protective services and courts act based on generalized assumptions about a parent’s disability rather than on the required specific instance(s) of abuse and neglect or based on evidence of the effects of a disability that have since been corrected. Parenting assessments may be biased or unadapted to the situation.

Assessments of parenting competency should look at parenting skills rather than diagnosis, be free of bias and based on valid and reliable assessment tools used by qualified professionals. Parenting skills should be assessed directly and in the natural setting of the parent and child, and should take into account all relevant information. Assessment of parenting capacity should be based on specific evidence rather than speculation.

Reasonable Modifications of Programs and Services

An additional obstacle for parents with disabilities in the child protection system is that services offered that are intended to help reunify families or to maintain family unity are often not designed to meet the parent’s specialized needs.

The Americans with Disabilities Act can require state entities such as the Division for Children, Youth and Families (DCYF) to provide reasonable modifications to their programs and services that would more appropriately serve the individual needs of the parent with a disability. For example, an individual with a developmental disability required to attend parenting classes may request classes individually tailored to meet her unique needs such as home-based or one-to-one training and mentoring. Assistance may be requested by a parent with mental illness in finding and obtaining mental health services if required. Modifications to programs may be required to ensure that an individual that is deaf or hard of hearing will have effective communication. Public entities are not required to make accommodations that would fundamentally alter the nature of the program or service or result in undue financial and administrative burdens. Individuals with disabilities have the right to receive a service that is as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others.

Parents with disabilities in the child protection system and their attorneys and advocates should ensure that the services provided or needed are tailored to the needs of the individual. Requests for modifications in training or other family preservation services due to a disability should be raised as early as possible. If you have questions regarding your rights to request such modified services, please feel free to contact Disability Rights Center - NH.

- Amy Messer, Executive Director

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updated September 21, 2015