In a massive new policy study, the National Council on Disability, an independent federal agency, documents the numerous barriers faced by parents with disabilities attempting to keep their families intact.
Even though the Americans with Disabilities Act pertains to custody hearings, state governments are dramatically more likely to remove the children of parents with disabilities than from their peers. According to the report, parents with psychiatric disabilities lose their children in nearly 80 percent of cases, while rates for the blind and deaf communities, among others, are disproportionately far higher as well.
Courts in two-thirds of states have the express authority to find that parents are unfit solely on the basis of their disabilities, regardless of if there is a nexus between the parent’s disability and their parenting abilities. The report calls on state legislatures to eliminate disability as a basis for a finding of unfitness and enact laws expressly prohibiting this form of discrimination.
“Twenty-two years after passage of the Americans with Disabilities Act with an increasing number of people with disabilities taking advantage of increased protections to receive an education and go to work, parents with disabilities continue to be the only distinct community that have to fight to retain – and sometimes gain – custody of their own children without cause,” said NCD Councilmember Ari Ne’eman in a news release.
During the past half century, a shift occurred in custody hearings from an emphasis on reuniting families to a legal standard based on “the best interest interests of the child,” highlighted by the 1997 Adoption and Safe Families Act’s overhaul of the national foster care system. Though this shift is well intentioned, the report states, it has further magnified stereotypes and misconceptions about parents with disabilities, as well as create unreasonably short timelines and other barriers for recovering parents who temporarily place their children in the foster care system.
The report also criticizes the states’ inconsistent application of the Act’s requirement to make “reasonable efforts” to keep together parents with disabilities and their children together. It calls on states to dramatically expand medical, psychological and other social services to help parents get back on their feet.
“The rate of removal of children from families with parental disability—particularly psychiatric, intellectual, or developmental disability—is ominously higher than rates for children whose parents are not disabled. And this removal is carried out with far less cause, owing to specific, preventable problems in the child welfare system,” the report states. “Further, 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.”