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Rockland & Westchester County Divorce Lawyer > Blog > Child Custody > Disabled Parents, the Best Interest Standard & Custody Rights

Disabled Parents, the Best Interest Standard & Custody Rights


The best interest of the child standard involves judges weighing a number of factors in deciding on what the best custody arrangement is for the child. In New York, two of those factors include “the child’s health and safety” as well as “mental and physical health of the parents.”

This standard is arguably subjective, and raises a number of questions and concerns; not only about leaving this subjective judgment to a judge, where there is no guidance provided as to what it means to be in the “best interest of the child” (i.e. does this mean providing that child with spiritual exposure? Productivity? Warm interpersonal relationships? Discipline?), but how this subjective judgment could possibly pass onto the parents, where certain assumptions – such as that parents with physical disabilities are not as capable of serving in that best interest – could cost a parent with a disability custody and/or visitation.

In spite of the many legal violations involved in applying this bias in custody decisions against disabled parents, there have been reported instances of it in family court: According to the National Council on Disabilities, people with disabilities are four times more likely than those without them to experience a termination of parental rights, and the stories are harrowing: One judge reportedly subjected a mother with a physical disability to a stopwatch test to see how quickly she could get upstairs in case of an emergency; while another ruled that the children must live with their father in part due to their mother’s cancer diagnosis.

What The Studies Show

According to studies, there is no evidence to support the concept that children of parents with disabilities suffer any adverse parental effects and outcomes for children with parents who have disabilities are substantially similar to children of parents who do not have physical disabilities. As a result, the presence of a disability in a parent is not a predictor of parental functioning or performance, and disability should not be a factor at all in making a best interest determination.

Your Legal Rights as a Disabled Parent

The truth of the matter is, not only is it a biased assumption that disabled parents cannot provide what is in the best interest of the child, but it an illegal one: Disabled parents are protected by the Americans with Disabilities Act and the Rehabilitation Act, and, as a result, courts cannot make decisions that will have a negative impact on a parent solely based on that parent’s disability.

Contact The Very Best in Family Law For Your New York Custody Case

When it comes to proper representation in custody cases, education of the courts is absolutely key; not only in terms of dispelling any myths that disabled parents somehow cannot provide what is in the best interest of the child simply because of their disability, but also of the vast legal violations involved in judges making custody decisions based on parents’ disabilities.

If you have any questions or concerns about your custody case, contact Rockland County child custody attorney Robert S. Sunshine for help today.



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