A disability can affect almost every aspect of a person’s life, and the lives of everyone in that person’s family. What happens when the family splits up in a divorce? How does disability affect child custody?
First off, California courts cannot deny parents their custody rights due simply to a parent’s physical disability. In making child custody decisions, courts must determine the best interests of the child, considering a number of factors, including: the age of the child; the health of the child; the emotional ties between parent and child; the ability of the parents to care for the child; any history of violence or substance abuse; and the child’s ties to home, school and community.
In some cases, a court may determine that a parent’s disability limits their ability to care for their child, and take this factor into account. However, courts can’t deny custody rights to a parent on the basis of disability alone, just as they can’t deny custody rights to a parent simply on the basis of the parent’s religion or sexual orientation.
It’s important to note that in most cases, it’s not the court making all the decisions about child custody. Most parents who live separately create their own parenting plan. They sign the agreement and it becomes a binding contract. In some cases, the parties need stronger enforcement and so they send their agreement to the court, which approves it and makes it a court order. In this way, if one parent fails to live up to the order, the other parent can call on the court to enforce compliance.
It’s also important to remember that even parents who don’t live with their children typically have visitation rights. A court can order visitation according to a predetermined schedule, or leave it up to the parents to arrange for a reasonable visitation schedule.