Discrimination Against Parents with Disabilities

By Robert L. McClelland, CELA

The National Center on Parents with Disabilities estimates that at least 4.1 million Americans with children under 18 (6.2 percent) have disabilities of their own. Every day, in countless ways, those moms and dads battle deep-rooted stereotypes as they take on that toughest of jobs — raising kids. Every state has laws on the books listing “disability” as a reason to deny parents custody of their own children.

But let’s begin with a less extreme example: parent/teacher conferences. A little creative accommodation would go a long way towards making it easier for parents with special needs to participate. There is, for instance, amazing insensitivity with regard to hearing disabilities. Although public schools and courts routinely provide Spanish-speaking translators, there are few signers readily available to communicate with deaf parents. Often the child acts as interpreter, not the ideal arrangement, especially where discipline may be discussed and parent cooperation is necessary.

Travel can also be a challenge. Some parents are home-bound. For others, public transportation may be inconvenient or unavailable. Although a teacher may not be able to visit the student’s home, there are technological alternatives: Skype, email, or phone conferences, including the use of TTY.

Another issue relates to the increasing number of children who are now being raised by grandparents, who may have age-related or other disabilities. Given the prevailing stereotypes concerning seniors, it may be appropriate to consider “disability” within a broader context.

In 2013, the National Council on Disability submitted a detailed report to Congress entitled “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children.” Here are highlights:

Finding: “The child welfare system is ill-equipped to support parents with disabilities and their families, resulting in disproportionately high rates of involvement with child welfare services and devastatingly high rates of parents with disabilities losing their parental rights.”Recommendation: The Department of Health and Human Services and the Department of Justice should issue guidance to state welfare agencies and dependency courts concerning their obligations under ADA.

Finding: “Parents with disabilities who are engaged in custody or visitation disputes in the family law system regularly encounter discriminatory practices.”

Recommendation: Family court professionals, such as judges, attorneys, and evaluation personnel should be required to receive regular training related to parenting with a disability and the requirements of ADA.

Finding: “Parents with disabilities who are involved in dependency or family proceedings regularly face evidence regarding their parental fitness that is developed using inappropriate and un-adapted parenting assessments….”

Recommendation: Lack of access to adaptive devices and services should not influence evaluations of an individual’s parenting skills. States should establish programs for the reuse and loan of adaptive parenting equipment.

Finding: Prospective adoptive parents with disabilities face significant barriers to adopting children, both domestically and internationally.

Recommendation: Adoption staff should be trained regarding parents with disabilities, adaptive equipment, techniques, and supportive services.”

In 2015, the Obama administration responded, citing the mandates of the Rehabilitation Act of 1973 and ADA. They declared that entities receiving federal financial assistance — such as child welfare agencies and state courts — must provide equal access to child welfare services and activities in a nondiscriminatory manner. They further stated that individuals with disabilities should not “be deprived of custody of their children or denied the opportunity to adopt or serve as foster parents, because of stereotypes and unfounded assumptions.”

A beginning, but clearly, much remains to be done. There may be laws on the books that outlaw discrimination based on disability, but awareness, education and enforcement are sorely lagging.

About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.

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