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Disability and Discrimination in Custody Battles

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Imagine you are a parent who has overcome a disability. The disability could be physical that confines you to a wheelchair; or a psychiatric disability that requires you to take medication. You are living a perfectly normal life with your disability, so much so that your disability isn't really a disability in your mind - it is just part of living. You have learned to overcome what some other people who had a similar diagnosis have not yet learned to overcome. The disability has proved that you have the ability to live a normal life.

But then imagine that you are now going through a divorce, you have children and you need to go to court to fight for custody of your children. Imagine that the judge takes one look at you or your file and sees that you have bipolar disorder like actress Catherine Zeta-Jones or former US Rep. Patrick J. Kennedy has, or you have Guillain-Barre syndrome, as President Roosevelt had.

Imagine that based on that diagnosis, a judge decides that you are unfit for custody of your child. Imagine that you have been the primary caregiver for your child or children and then someone who has never seen you interact with your children, who has never entered the home you run decides that you are not as able to take care of your children as your spouse.

This happens all across the United States and it is wrong.

No one should be discriminated against based on disability. When determining custody the issue should not be the presence or absence of a disability but the care that will be given to a child. Maybe the person with a disability is a good person who married a person without a disability who is a bad person -- a drinker, an abuser, someone who is neglectful, etc.

A judge needs to be aware and mindful that denying a parent custody based on a disability is not only not necessarily in the best interest of the child, it is discrimination.

This legislative session, the Massachusetts Joint Committee on the Judiciary considered a comprehensive bill that would prohibit discrimination against parents with disabilities in family law and child welfare proceedings. This legislative session, I introduced An Act Prohibiting Discrimination Against Adults with Disabilities in Family and Juvenile Court Proceedings (H1379); this bill was co-sponsored by 15 additional legislators.

H1379 is based on the National Council on Disability's "Rocking the Cradle" report and in fact mirrors the language of the model legislation in the report.

H1379 requires that, when a court uses a parent's disability as a factor in a custody or visitation determination, the court must have written findings to determine whether a parent's disability causes harm to his or her child. This law would also require courts to determine whether the harm to the child can be alleviated by "adaptive parenting equipment" or "supportive parenting services," which are both defined in the bill. Moreover, HB 1379 raises the burden of proof to preponderance of the evidence for most domestic relations matters concerning parents with disabilities and to a clear and convincing standard for child welfare proceedings where a parent has a disability.

In addition to NCD's Robyn Powell testifying at the hearing, the Committee heard from two parents who encountered discrimination. One parent ultimately had lost custody of her children because of her psychiatric disability. The other, a wheelchair user, spoke of ungrounded referrals to the Department of Children and Families. In addition, an attorney who represents parents with psychiatric disabilities described at length the significant discrimination that her clients face.

H1379 received significant cross-disability support and interest from a variety of state and national organizations, such as the Mental Health Legal Advisors Committee, Disability Law Center (the Massachusetts Protection and Advocacy organization), Easter Seals, Disability Policy Consortium, National Federation of the Blind, The Association for Successful Parenting, and several independent living centers.

Despite significant support by the disability community, in late June, H1379 was "sent to study," effectively killing it for the remainder of the current legislative session.

Often times, a bill lives and dies not because it was a good idea or a bad idea, but because of the amount of support the bill has. Other times it is because of a precedent that has been set in other jurisdictions, or because of a high profile case, or because the committee just does not want to take the issue up at this time. The average amount of time for a bill to become law in Massachusetts is about six years.

H1379 was an important step forward in ensuring the rights of parents with disabilities in Massachusetts, and the disability community urges the Commonwealth to swiftly pass it in the next legislative session. If passed, Massachusetts will join the ranks of other states that have enacted similar laws -- Idaho, Missouri, Kansas, Tennessee, Oregon and Washington.

Imagine that we live in a world where someone who had to overcome a disability is no longer discriminated against when fighting for custody of their child in what is an already very stressful and emotional period of life. We can live in that world.

Paul Heroux is a State Representative from Massachusetts. He is on the Joint Committee on Children, Families and Persons with Disabilities, and the Joint Committee on Mental Health and Substance Abuse. Paul Holds a Bachelor's in Psychology and Neuroscience from the University of Southern California, and Master's degrees from the University of Pennsylvania, the London School of Economics, and the Harvard JFK School of Government. Paul can be reached at paulheroux.mpa@gmail.com.

Robyn Powell of the National Council on Disability substantially contributed to this article as well.

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