In the spring of 1985, William and Elizabeth Stern decided to have a baby.
Mrs. Stern feared that giving birth to a child would pose a danger to her health.
Multiple physicians warned her that because she had multiple sclerosis, pregnancy could be hazardous.
To alleviate their concerns, the Sterns formed a surrogacy agreement with Richard and Mary Beth Whitehead: Using Mr. Stern’s semen and her own egg, Mrs. Whitehead acted as a surrogate for the Sterns in exchange for $10,000.
Though Mrs. Whitehead initially adhered to her contractual obligations, she ultimately fled with the child.
What followed was what many commentators have deemed “the custody trial of the twentieth century.”
Legal scholars and practitioners most often invoke Baby M to support the proposition that courts may invalidate contracts on public policy grounds.
But beyond the sensational facts and theories regarding the nature of the contract in Baby M is another curious issue: the applicability of Mrs. Stern’s condition to the trial court’s inquiry into the most suitable custody arrangement. At trial, the parties called four expert witnesses to provide testimony concerning Mrs. Stern’s multiple sclerosis, which the Whiteheads alleged bore “directly upon her ability to raise and care for a child and upon her fitness as a parent.”
The expert witnesses summarily rejected the Whiteheads’ allegations and the court followed suit.
Though Mrs. Stern’s disability essentially became a nonissue in Baby M, disability is often a heavily weighed factor in custody disputes.
Consider the more recent—and similarly publicized—case of Kaney O’Neill.
In 2009, O’Neill became locked in a bitter custody battle with her ex-boyfriend, David Trais, over their ten-week-old son.
O’Neill, a Navy veteran, became paralyzed from the chest down when Hurricane Floyd’s gales blew her from a balcony to the pavement below and shattered her vertebrae.
Though O’Neill had prepared extensively for motherhood, Trais alleged that her disability “greatly limit[ed] her ability to care for the minor.”
At the initial emergency custody hearing, the court granted Trais paternity with liberal visitation
and appointed a guardian ad litem to the child.
The custody battle dragged out for more than a year before both parties came to an agreement that Trais would have no more than visitation rights.
And although the outcome was largely favorable to O’Neill, she remarked that she was “disappointed that the courts allow for someone to question your ability to have custody based on your disability.”
O’Neill’s experience was by no means an aberration. Rather, parents with disabilities have reported pervasive disparate treatment in the family law system.
Many in the family law system label parents with disabilities presumptively unfit, which reflects widespread attitudinal bias concerning the nature of their abilities.
One attorney commenting on O’Neill’s case for the Chicago Tribune, for example, remarked: “Certainly, I sympathize with the mom, but assuming both parties are equal (in other respects), isn’t the child obviously better off with the father?”
He continued, “What’s the effect on the child—feeling sorry for the mother and becoming the parent?”
Statements such as these are at odds with recent empirical and qualitative studies, which demonstrate that parental disability does not adversely affect a child’s well-being.
While the above-described biases create barriers for parents with disabilities even outside the courtroom, they are particularly problematic in court given the use of the best interests of the child standard in child custody disputes.
Although both termination proceedings and standard custody proceedings utilize the best interests standard, this Note distinguishes between the two because of the different practices each entails. For example, for the state to succeed in termination proceedings, it typically must meet the statutory grounds for termination by clear and convincing evidence, id. at 495, whereas the burden of proof in standard custody proceedings, no matter the relief sought, is typically preponderance of the evidence, see, e.g., Elrod, supra note 15, § 8:10.
The best interests standard notoriously endows judges with vast discretion in deciding with whom to place a child.
As this Note demonstrates, this discretion increases the likelihood that parents with disabilities will face discriminatory treatment.
To resolve this problem, courts must adopt specialized procedures for handling physical disability objectively within the best interests framework. In the past, courts utilized the best interests standard to deny LGBT parents custody on the grounds that their sexual orientation would be detrimental to the child’s well-being.
Yet, as with physical disability,
sexual orientation has no bearing on one’s ability to parent.
Recognizing this fact, many courts have utilized a nexus test under which they consider a parent’s sexual orientation only if it will demonstrably harm the child.
As this Note argues, a nexus test is likewise appropriate in the disability context to ensure that parents with physical disabilities do not face arbitrary discrimination.
Part I of this Note provides background on the disability rights movement and the relevant legal standards at issue. It also explains the lack of redress available to parents with disabilities stemming from deficiencies in constitutional doctrine and the Americans with Disabilities Act (ADA). Part II first underscores how the best interests of the child standard—in connection with judicial attitudinal bias—promotes discrimination against parents with disabilities in the family law system. To demonstrate that courts should treat parents with disabilities similarly to parents without disabilities in custody proceedings, it then describes empirical and qualitative social science literature concerning the nature of parenting with disability. Part II concludes by highlighting the inadequacy of other means by which courts have attempted to limit bias in this context. Finally, Part III proposes several solutions to the underlying problem relating to how judges should consider disability as part of the best interests framework. At most, recognizing that many states overtly require inquiry into parental disability, judges should consider physical disability only when the party asserting it as grounds for a change in custody can demonstrate that there is a nexus between a parent’s disability and harm to the child.
I. Parenting with Disability, the Law, and the Best Interests of the Child Standard
This Part explores the relevant intersection between disability law and family law and further provides background knowledge on the operation of custody disputes both generally and as applied to parents with disabilities. Section I.A highlights disability law developments and their applicability to the problems this Note discusses. Section I.B hones in more specifically on custody law, with an emphasis on the best interests of the child standard.
A. Where Disability Law Meets Parenting with Disabilities: The ADA and Constitutional Law
Presumptions of parental unfitness against persons with disabilities are rooted deeply in American history. These presumptions, at their most extreme, prompted the eugenics movement; through the first half of the twentieth century, more than thirty states passed legislation that permitted involuntary sterilization.
One prominent figure pushing the eugenics agenda called for the sterilization of 203,255 Americans annually via the application of a model statute that sought to sterilize epileptics, addicts, alcoholics, the blind, the deaf, the “diseased,” the “insane,” the “deformed,” and more.
Such statutes reflected a widespread belief that people with disabilities—whether physical or psychiatric—would produce inferior offspring.
This tragic logic, as one commentator noted, would have rid the world “of the likes of Beethoven, Mozart, Milton, Poe, and Napoleon.”
The Supreme Court endorsed eugenics in Buck v. Bell, in which a Virginia statute authorized the state to sterilize a woman purely because she had a developmental disability.
Not only did the Court find, eight to one, that the statute was constitutional, but also, in his opinion for the Court, Justice Holmes overtly subscribed to the eugenics agenda, noting that “[t]hree generations of imbeciles are enough” in arguing for the statute’s constitutionality and advocating the claimant’s sterilization.
Constitutional law and federal legislative reform have since caught up to the eugenics movement. But while lawmakers have demonstrated their interest in protecting people with disabilities and have made enormous strides in promoting parity,
their efforts do not reach child custody disputes. This section describes the extent to which reform protects parents—and potential parents—with disabilities to demonstrate that solutions to the problems that this Note highlights must arise out of the family law context and, likely, the best interests standard itself. Section I.A.1 provides a brief overview of disability constitutional law while section I.A.2 briefly describes the applicability of federal legislative reform—namely the Americans with Disabilities Act—to parents facing discrimination in the family law system.
1. Disability Constitutional Law. — The Fourteenth Amendment’s Equal Protection Clause provides some protections for parents with disabilities. Courts analyze state action pertaining to disability under rational basis review.
But further analysis of the Supreme Court’s disability jurisprudence reveals that it has, in practice, utilized a slightly more exacting standard than mere rational basis. In City of Cleburne v. Cleburne Living Center, Inc., the Court nominally applied rational basis review in assessing whether a city validly denied a permit that would have facilitated the construction of a group home for individuals with intellectual disabilities.
Nonetheless, it found that the permit denial was invalid because it was based on an “irrational prejudice” against persons with disabilities.
The Court’s analysis in Cleburne “differed from traditional rational basis review because it forced the government to justify its discrimination. Moreover, the Court did not simply defer to the government; it scrutinized the justifications that the government offered in order to determine whether they were rational.”
Commentators have routinely characterized the slightly heightened standard employed as “rational basis with bite.”
Yet the rational basis with bite standard may be available only in cases in which state actors are motivated by an overtly illegitimate discriminatory purpose (that is, animus toward a group).
It is unlikely that parents with disabilities would be able to identify such purposes in bringing a claim against state actors in the family law system: As this Note argues, the discrimination that parents with disabilities face today is no longer the product of an overtly discriminatory eugenics movement but rather the aggregation of biases that have been normalized over time.
Constitutional recourse is thus likely unavailable.
2. The Americans with Disabilities Act and Child Custody Proceedings. — Congress has enacted several laws to limit discrimination against people with disabilities. The Rehabilitation Act, the first federal law designed to protect people with disabilities, seeks to “[e]mpower [such] individuals . . . to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through . . . the guarantee of equal opportunity.”
The most salient feature of the Act is section 504, which prohibits programs that receive federal financial assistance from discriminating against individuals “solely by reason of her or his disability.”
Similarly, the Americans with Disabilities Act and the Americans with Disabilities Amendments Act seek to reduce the stigma experienced by—and limit discrimination against—people with disabilities by prohibiting employers from discriminating on the basis of disability
and requiring public accommodations.
Title II of the ADA notably protects individuals with disabilities from being subjected to discrimination by public entities.
Regulations promulgated under the ADA prohibit public entities from utilizing “criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability [or] . . . [t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.”
Still, parents with disabilities that face discrimination in the family law system are largely without redress under the ADA. Numerous state courts have found that parents may not invoke Title II in child custody proceedings because such proceedings do not constitute “services, programs, or activities” under the provisions of the Act.
In the termination of parental rights (TPR) context, courts that reject the availability of the ADA as a defense to termination have suggested that Title II of the ADA might provide a separate independent federal cause of action to parents with disabilities who allege that the state has subjected them to discriminatory treatment.
Such an independent cause of action may also be available to claimants alleging discriminatory treatment in child custody disputes.
But in practice, Title II claims are difficult to bring for those who have faced discriminatory treatment in custody proceedings. Because claimants will inevitably name state officials and agencies as defendants to make out claims, they must overcome the barriers presented by state sovereign immunity.
And though the ADA abrogates state sovereign immunity when a violation of the Act has taken place,
the Supreme Court has substantially narrowed the potential application of this provision. In Tennessee v. Lane, the Court interpreted the provision to apply to cases that implicate a plaintiff’s “fundamental right of access to the courts.”
Two years later in United States v. Georgia, the Court held that Title II abrogates state sovereign immunity in cases in which plaintiffs allege state conduct that violates the Fourteenth Amendment.
Whether Title II may validly abrogate sovereign immunity with respect to misconduct that violates the ADA, but not the Constitution, remains open to question.
And whether Title II may validly abrogate sovereign immunity with respect to state court misconduct in child custody proceedings has not been resolved. While the right to parent is a constitutionally protected right,
child custody cases involve two parents whose rights conflict with one another and a child whose rights trump.
Sovereign immunity is not the only barrier to Title II claims in this context. Courts may also dismiss Title II claims for damages on absolute or qualified immunity grounds.
When child custody proceedings are ongoing, federal courts may abstain from entertaining Title II claims.
Thus, even when one can make out a claim that a federal court will ultimately hear, claimants may not be successful. Even still, as a practical matter, Title II may be ineffective in this context simply because the parent may already have lost custody of her child. Neither prospective injunction nor damages can remedy a parent for the loss of her time raising a child during a potentially protracted legal battle.
B. Child Custody Disputes and Parents with Disabilities
Many persons with disabilities resist the stereotypes that society imposes upon them and choose to become parents. Many other parents develop disabilities during their child’s formative years. Today, over four million parents with disabilities—approximately six percent of all Americans who have children under the age of eighteen—live in the United States.
In addition to facing pressure to undergo sterilization or abortion,
parents with disabilities often struggle to retain custody of their children. Removal
rates in cases in which parents have a psychiatric or intellectual disability may be as high as eighty percent.
Thirteen percent of parents with physical disabilities have reported discriminatory treatment in custody cases.
Part II describes how prevailing legal standards promote this kind of treatment. This section, however, broadly explains the legal standards courts use in child custody cases. Primarily at issue in such cases is whether a change in custody would be in the child’s best interests. This inquiry, commonly referred to as the best interests of the child standard, is applicable to custody disputes in all fifty states.
Section I.B.1 describes the standard and how it operates while section I.B.2 explains how courts apply it when one parent has a disability.
1. The Family Law System and the Best Interests of the Child Standard. — Though the statutory regimes that govern custody law vary from state to state, sufficient commonality exists across the nation to consider such issues en masse.
In general, custody disputes demand that a judge, acting as parens patriae, decide the rights of the parties.
In this capacity, judges have the authority to decide with whom a child ought to be placed, largely based on what they believe are the child’s best interests. In accordance with this role, judges have historically invoked the best interests of the child standard to decide custody cases.
The best interests standard is perhaps the most salient component of custody law today.
Courts invoke the standard not only in custody disputes
but also in TPR
and adoption proceedings.
The overarching inquiry is, in many respects, one of pure judicial discretion: Judges must consider whether modification of the current custody arrangement would be in the best interests of the child. While courts across the country face statutory mandates to consider a child’s best interests in all child custody proceedings,
some states explicitly provide a range of considerations that courts must take into account.
Though enumerated considerations vary from state to state, numerous commonalities dominate the custody landscape. The Uniform Marriage and Divorce Act calls for consideration of the parent’s wishes as to placement; the child’s wishes as to placement; parent–child interaction; the child’s adjustment to her home, school, and community; and, finally, the mental and physical health of all individuals involved.
In the TPR context, statutes frequently require consideration of the emotional ties between parent and child; the capacity of the parents to provide a safe and adequate home and upbringing; the mental and physical needs of the child; the presence of domestic violence in the home; and the parents’ mental and physical health.
Even across custody-dispute contexts, then, the considerations that courts use to determine a child’s best interests are analogous. And even in the absence of explicit statutory guidelines, courts tend to invoke similar considerations.
2. The Best Interests Standard as Applied to Disability. — Most states and state courts have found that disability may not constitute a per se bar to custody; they instead consider disability only with reference to the best interests standard.
Numerous states require that judges consider parental health in custody proceedings under the best interests standard.
In most, if not all, of the remaining states, courts consider disability and parental health at their discretion.
Of the states that mandate consideration of disability, only a handful explicitly define or limit the definition of disability to provide further guidance for the courts.
When state legislatures do not provide statutory definitions, state courts are left to their own devices to determine how to weigh disability on a case-by-case basis.
Several state courts have adopted frameworks for inquiring into parents’ disabilities in child custody disputes,
all of which essentially follow the California Supreme Court’s ruling in In re Marriage of Carney.
Carney marked the culmination of a custody dispute between William and Ellen Carney.
Ellen originally relinquished custody of the children to William prior to their divorce.
A short time thereafter, a car accident left William paralyzed from the legs down.
William then filed for divorce, and Ellen launched a custody action alleging that it was impossible for William to care for the children in his state.
The trial court gave great weight to Ellen’s allegation,
despite the fact that her interactions with, and support for, the children had been limited for five years.
In finding for Ellen, the trial court insisted that “it would be detrimental to the boys to grow up until age 18 in the custody of their father . . . [because] [i]t wouldn’t be a normal relationship between father and boys.”
Though William was remarkably bright, had an excellent relationship with his children, and had adapted well to his disability—and though Ellen simply was not there for the children—the trial court found for Ellen.
The Supreme Court of California reversed, acknowledging that the trial court “premised its ruling on outdated stereotypes of both the parental role and the ability of the handicapped to fill that role.”
In placing custody with William, the court held that best interests inquiries involving parents with disabilities should turn on the following factors: (1) the person’s “actual and potential physical capabilities,” (2) how the person “has adapted to the disability and manages its problems,” (3) how “other members of the household have adjusted thereto,” and (4) the “special contributions the person makes to the family despite—or even because of—the handicap.”
Numerous state courts have expressly adopted the Carney approach in custody proceedings.
In denying one father’s petition seeking modification of an order that granted custody to a mother who had become a paraplegic, for example, a New York family court noted that the Carney standard “is appropriate and keeps in mind the fact that we are dealing with a person . . . with a physical condition which must be adjusted to and not a non-functioning being.”
Other states continue to utilize an approach that views disability as one factor among others.
II. Problems in Considering Disability as Part of the Best Interests Calculus
In child custody disputes, parents with disabilities often encounter pervasive discrimination stemming from attitudinal biases. In one case, a judge asserted that a mother with physical disabilities was unfit despite findings in psychological and occupational therapy evaluations indicating that she would be able to care for her children.
The judge was particularly concerned with how quickly she could get up and down the stairs.
When she demonstrated her ability to do so, the judge then demanded that she test her speed with a stopwatch.
In another case, a mother in North Carolina with stage IV breast cancer lost custody of her children in part because of her diagnosis.
In coming to her decision, the judge reportedly cited a psychologist’s testimony: “The more contact [the children] have with the non-ill parent, the better they do. They divide their world into the cancer world and a free of cancer world. Children want a normal childhood, and it is not normal with an ill parent.”
This notion of a “normal” childhood is of the kind that the California Supreme Court, in Carney, found to be per se discriminatory.
Parental disability is a proper indicator of neither parental ability nor the relationship between parent and child.
If disability has little to no effect on one’s ability to parent, then why should it constitute a factor in best interests inquiries? The continued consideration of disability in custody disputes perpetuates two real concerns for individuals with disabilities in that it: (1) permits discrimination against what should be a lawfully protected class
and (2) reinforces stereotypes against that class. Section II.A describes some of the general critiques of the best interests standard as a means to lay the foundation for the standard’s shortcomings when applied to parents with disabilities. Section II.B presents social science literature establishing that parental physical disability does not adversely affect childhood development, thereby demonstrating that disability is not an appropriate factor for courts to consider in best interests analyses. It subsequently critiques application of the best interests standard in the context of custody disputes. Section II.C develops the notion that Carney, as praised as it is in family law circles, did not create an ideal solution to these problems. In fact, legal consideration of disability in the best interests calculus intrinsically perpetuates attitudinal biases against persons with disabilities across communities.
A. Critiques of the Best Interests Standard
The academic community has widely criticized the best interests standard since its inception. Professor Robert H. Mnookin voiced one of the earliest prominent critiques of the standard; his 1975 article Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy sought to “expose the inherent indeterminacy of the best-interests standard.”
According to Mnookin, custody decisions are fundamentally an exploration of alternatives—that is, they are inquiries into the ideal placement for the child at the center of the dispute.
In that vein, judges must predict the most desirable outcome among the alternatives before them. Yet, how are judges to predict what is best for a child when even social science provides “no reliable guide for predictions about what is likely to happen to a particular child”?
Making positively accurate predictions about the child’s future is impossible; the reality is that a judge cannot account for all of the possible contingencies that might arise over the course of that child’s life.
Similarly, a judge must collect all pertinent information incident to her choice. But, as Mnookin argues, “One can question how often, if ever, any judge will have the necessary information.”
In many circumstances, judges do not have enough information as to “even the most rudimentary aspects of a child’s life with his parents and [have] still less information available about what either parent plans in the future.”
Furthermore, custody statutes generally do not provide relative weights to the considerations pertinent to the child’s best interests, and this lack of guidance complicates the decisionmaking process for the decisionmaker.
Ultimately, whose values is the judge to use in coming to a final determination? A judge cannot look to society at large for those values, for there is “neither a clear consensus as to the best child rearing strategies nor an appropriate hierarchy of ultimate values.”
Nor can she look to the child’s values: Not only may a child lack the maturity and capacity to appropriately determine her own best interests, but also the responsibility for the choice may jeopardize her relationship with her parents.
Judges are therefore forced to use their own values.
Mnookin’s critique of the standard’s indeterminacy has held weight for the past several decades. Professor Jon Elster argues that “in many cases, perhaps most, [the standard] simply does not yield a decision.”
Like Mnookin, Elster notes that a determinate resolution to a custody case requires that each of the following conditions be known quantities: all of the possible outcomes of each option, the probabilities of each outcome, and the values attached to each outcome.
Yet, none of these considerations can be dispositively identified.
Elster further opines both that the standard is unjust because it ignores the relative rights of the parents
and that it is self-defeating.
Further in line with Mnookin, Professor Robert J. Levy argues that the indeterminacy of the best interests standard encourages judges to “award custody to those litigants whose attributes and values most resemble their own.”
Over the past several decades, academics have frequently highlighted the standard’s indeterminacy in critiquing it.
The critique most relevant to this Note, however, is that practical application of the standard is marred by personal and cultural bias.
The vagueness of the statutory criteria and uncertainty over the relative weights they are to be given in the analysis invite judges to utilize their own experience as a foundational reference.
And that experience is as prone to bias as any. In the past, courts often utilized the standard to deny potential LGBT parents the right to adopt on the grounds that their sexual orientation would be detrimental to the child’s well-being.
And prior to that, courts used the standard to make custody decisions based on race.
The cultural biases that prevented LGBT parents and parents from diverse or racially mixed households from attaining and retaining custody of their children similarly affect parents with disabilities struggling to retain custody of their children.
B. The Best Interests Standard, Judicial Bias, and Parenting with Disability
Much like social science researchers have debunked the notion that LGBT parents’ sexual orientation adversely impacts the development of their children, so too have they called into question the notion that disabilities adversely affect one’s ability to parent.
Yet while courts have largely done away with considering sexual orientation unless it is somehow found to harm the child,
they continue to consider physical disability as an important factor in best interests inquiries.
This section sheds light on findings that disability has little to no effect on one’s ability to parent and on how courts have accordingly adopted a misguided approach to considering disability in best interests analyses. Section II.B.1 explores the social science literature on parenting with disability. Section II.B.2 then highlights how consideration of disability in best interests analyses invites judicial attitudinal bias that allows for discrimination against parents with disabilities.
1. Parenting with Physical Disability. — The problem with considering disability as part of the best interests calculus is that disability, on its own, bears neither on one’s ability to parent nor on outcomes for children. While many early studies on parents with disabilities found a correlation between adverse outcomes for children and parental disability, more recently published studies and literature reviews have concluded that children raised by parents with disabilities face outcomes similar to children raised by parents without disabilities.
In some circumstances, these studies concluded or noted that children of parents with disabilities are often better situated than their counterparts.
This section does not purport to be a comprehensive assessment on the literature detailing parenting with disability. The literature is still, in some respects, in its infancy and mostly details outcomes associated with parenting with intellectual, as opposed to physical, disabilities.
Rather, this section aims to shed light on some of the literature as a means to highlight agreement among academics that disability does not reflect parenting capabilities and to underscore the academic community’s skepticism about earlier findings of the potential negative impacts associated with parenting with disability.
Some early studies concluded that parental disability produces negative outcomes for children. Many of them, for example, concluded that children raised by parents with disabilities are more likely to experience behavioral problems.
Others voiced concerns about the child’s psychological development.
Some literature reviews have outright rejected findings of adverse outcomes for children stemming from parental disability, citing widespread methodological concerns. The problems with the studies finding adverse effects include: (1) their pathological methods, which are driven by a search for problems in these families rather than a search for objective truth; (2) failure to consider fundamental distinctions among disabilities; (3) overgeneralization from a singular case study; and (4) confusion of correlation with causation.
Such studies often do not even distinguish between physical and developmental or psychological disability.
The theory that has been most widely disputed is that children of parents with disabilities are likely to experience parentification.
Parentification is defined as the phenomenon by which a child is “forced to attend to parents’ physical and emotional needs at too young an age.”
Some have found, though, that parents with disabilities are actually more likely to shield their children from assuming the burden of care rather than require them to act as caretakers.
Parentification is distinct from family responsibility.
And even though a child may take on additional tasks, the performance of tasks does not transform child into parent so long as the parent has primary responsibility and authority.
Ultimately, parentification is a theory “for which little, if any, empirical verification exists.”
Outcomes for children of parents with physical disabilities are remarkably similar to those for children with parents without disabilities. One study, which surveyed hundreds of parents with disabilities (who primarily had physical disabilities) and their children, for example, concluded that “in many ways families with and without disabilities were remarkably alike in daily life” and the groups are “more alike than not.”
Similarly, an early study—perhaps the first that counteracted the prevailing negative research—found that children whose fathers had spinal cord disabilities developed normally in all areas examined.
One recent literature review found that most investigations that utilize nonpathological frameworks have concluded that there is “average to better-than-average development and functioning among children of disabled parents.”
The review further highlighted studies that have found that children of parents with disabilities have developed “enhanced coping and problem-solving skills; greater acceptance of difference; and more positive attitudes towards disability.”
And many of those studies that conclude that parental disability might increase the likelihood that children experience psychological distress note that such effects might be offset by whatever benefits may exist, such as being endowed with the ability to take on more responsibility or being more attuned to the needs of others.
Disability may even enhance certain parenting tasks. One study found that parents with disabilities who took more time diapering their baby developed a positive parent–child relationship by virtue of spending additional time interacting with their child.
Similarly, parental disability might promote a stronger bond between parent and child and facilitate greater trust and communication.
Children of parents with disabilities may even tend to express more positive feelings toward their parents than do those with parents without disabilities.
Ultimately, disability is not a good predictor of parental functioning or needs,
or parental performance.
Given the lack of a correlation between parental disability and capabilities, courts ought not to frequently invoke disability as a minus factor when inquiring into the best interests of the child.
2. Misapplication of Disability as Part of the Best Interests Calculus. — Despite the lack of a correlation between disability and parenting ability, courts often invoke disability in best interests analyses. This section will discuss how the best interests standard invites judicial attitudinal bias that negatively impacts parents with disabilities. As expressed in section II.A, the standard has been met with considerable criticism over the course of the past several decades, largely because it has the potential to force judges to resort to their own values in coming to a determination as to with whom the child ought to be placed. These criticisms are particularly noteworthy in the context of disability. Court opinions too often reflect presumptions that it may not be in a child’s best interests to live with or have extensive, continued contact with a parent with disabilities.
Judges often invoke negative speculation about the future based on stereotypes rather than on hard evidence.
Judges continue to consider physical disability as part of the best interests calculus. While they are often statutorily mandated to do so,
their analyses do not give proper deference to the notion that inquiries into disability may be less relevant than those into considerations like neglect or the connection between parent and child. The Vermont Supreme Court, for example, once wrote: “[I]t would not serve the best interests of a child to be placed with a parent who is unfit because of severe mental illness, incapacitating physical disability, or persistent neglect, abuse, or abandonment of the child.”
In so doing, the court placed disability on the same spectrum as neglect, abuse, and abandonment. More alarmingly, the court’s language presumed unfitness in the case of “severe” mental illness and “incapacitating” physical disability. This case illustrates that judges oftentimes do not know how to weigh disability as part of the calculus.
And as part of their own value systems, judges may accord more weight to disability than they otherwise should.
When determining the best interests of the child, courts not only weigh disability inordinately but also fail to give it considerable attention. While this Note would encourage that courts not look to disability at all, the reality of the matter is that state statutes often mandate its consideration.
When courts must inquire into disability, they ought to deal with it carefully to ensure that personal biases do not factor into the equation and that the rights of the parent are not infringed upon. As one commentator (though in the context of developmental disability) notes:
[I]t is precisely because the best interest standard allows so much discretion that those who work with it must be meticulous in applying it when a developmentally disabled parent is involved. If they are not, the danger is great that all persons involved—lawyers, judges, and even the parties themselves—could allow personal prejudices to be disguised behind the rubric of the “child’s best interest.”
This assertion is equally valid in the context of physical disability. Consider Bethea v. Bethea, in which a father sought to gain custody of his child after the child’s mother suffered an alcohol-and-drug-induced stroke that caused brain damage.
Without any discussion, the court merely acknowledged the parent’s disability and upheld the trial court’s decision with a one-page opinion.
The court discussed neither the extent of the mother’s disability nor its effect on her parenting behavior and its ramifications for her children and her relationship with her children.
While the court’s ruling could have stemmed from concerns regarding the mother’s potential alcoholism or drug abuse, the court instead lumped those concerns together with disability without discerning how it ultimately came to its decision.
Courts may also overtly invoke physical disability as a minus factor in their best interests analysis. In White v. White, a Mississippi appeals court refused to find that the lower court inappropriately weighed physical disability when determining primary physical custody of the children, even though the record demonstrated “that the physical health of the parties favored [the father] due to [the mother’s] ‘significant physical limitations, . . . being crippled from the waist down and legally blind.’”
The court merely checked off disability as part of a larger list of considerations that favored one party or the other, like willingness of the parties to modify their employment arrangements or to let the child engage in extracurricular activities.
Such an analysis ignores the fact that disability generally neither advantages nor disadvantages the child’s development.
Rather, it signals a reversion to the biases articulated by the trial court in Carney: that a child could not possibly live a “normal” life by being placed in the custody of a disabled parent.
C. Inadequacy of the Carney Standard
Despite the widespread praise that the Carney factors have been met with from commentators,
they do not dispositively solve the problems associated with consideration of disability as part of the best interests standard. As section II.C.1 will explore, states that do apply Carney-like factors have not been remarkably consistent or comprehensive in doing so. Likewise, section II.C.2 will argue that the standard still effectively puts disability, rather than the parent’s relationship with the child, at the center of the analysis.
1. Inconsistent Application of the Carney Factors. — Though the Carney framework theoretically has the potential to vastly reduce biases against parents with disabilities, it has not been consistently applied. As the National Disability Council has noted:
Although the higher court in Carney held that a parent’s disability should not be a factor in determining custody, this view has not been consistently enforced. Many parents continue to experience discrimination in child custody and visitation cases, and published court opinions reflect an ambivalent approach to deciding custody and visitation disputes in which a parent has a disability.
This section accordingly explores inconsistent application of the Carney standard.
A Colorado appellate court adopted the Carney framework in People in Interest of B.W., an appeal of a termination proceeding.
Yet after spelling out the standard, the court completely dismissed the relevant factors, noting only that “[t]here [was] adequate evidence in the record to establish that the physical and psychological manifestations of [the] disease in this respondent contributed to an environment which was injurious to the welfare of each child” without actually highlighting what those manifestations were and how they were injurious to the welfare of each child.
Such an analysis ignores the fact that one must look to the actual effects of the condition at issue rather than the condition itself when inquiring into the child’s best interests.
An Iowa appellate court similarly misapplied the second Carney factor, which calls for an inquiry into how the parent has adapted to her condition,
in In re Marriage of Shook.
In Shook, a father sought custody of his children from their mother Kim, who was paralyzed from the arms down after a car accident.
Like the Colorado court in B.W., the Iowa appellate court called upon the Carney factors to resolve the issue of the mother’s disability.
And just like the court in B.W., this court completely ignored them. Kim’s adaptation plan seemed to be largely reliant on in-home care providers who helped her with both her personal needs and the supervision and care of her children.
She also lived with her mother and stepfather, both of whom helped care for the children.
And the only social worker to have testified in the case recommended that Kim retain primary care of the children, in part because of her observations that Kim had sufficiently adapted and made the appropriate accommodations.
Yet, the court refused to acknowledge that the presence of her mother and stepfather could factor into the analysis, instead noting that “[a]lthough a loving and supportive extended family is a valuable resource in parenting young children, we must base our physical care determination primarily upon the relative strengths and weaknesses of the parents.”
This refusal also outright rejected application of the third Carney factor, which calls for the court to consider how members of the household have adjusted to the parent’s disability.
And the court further presumed, without any evidence from the record, that “[w]ithout such assistance she would likely reside in a care facility.”
Such a presumption is based entirely in stereotype.
These cases reveal precisely how courts have misapplied the Carney factors. Courts often do not engage directly with the factors and opt instead to implicate their own values concerning parents with disabilities.
Failure to engage meaningfully with the enumerated factors is not limited to these two cases. A California appellate court, for example, analogously invoked the Carney factors and, without an in-depth analysis into each of the considerations, merely noted that the trial court properly weighed the mother’s testimony concerning her migraine headaches.
While the mother admitted that her headaches, when bad, would cause her to become “unresponsive to others,” the court did not point to any evidence that she would become unresponsive to or neglectful of her children as a result of her condition, nor did it discuss the extent to which the mother may have otherwise adapted to her condition.
Though the court acknowledged that it did not modify custody solely on the basis of physical disability,
its findings concerning the mother’s migraines were effectively utilized as a minus factor in the best interests analysis rather than observed holistically as Carney requires.
2. Putting Disability at the Center of the Dispute. — Shook and B.W. further reveal another shortcoming of the Carney approach: It, in effect, makes central to the dispute the parent’s physical disability rather than the parent’s relationship with the child and the parent’s ability to provide a more loving and caring home. Particularly when courts fail to apply the standard correctly, courts tend to evaluate parents not for their parenting abilities but for their disability status.
Emphasizing the relevance of disability to the best interests calculus may have the effect of reinforcing the notion that parents with disabilities are inherently less fit than those without disabilities. After all, why would a court inquire into physical disability at all if it did not presume that some parents’ physical disabilities would be of detriment to the child?
Many of the best interests standard’s common critiques continue to be relevant. Though a court may probe into the Carney factors, it may still lack information about potential outcomes and the probability of outcomes, even with expert testimony.
The Carney standard further provides no guidance as to how courts ought to weigh each factor,
thereby resulting in further indeterminacy. How is one to weigh the parent’s capabilities with reference to their adaptation? Surely, parents’ adaptation strategies, if effective, should prevail, but without guidance, courts may still opt to focus primarily on the parent’s capabilities, as was the case in Shook.
Without a sufficient base of knowledge of the parent’s circumstances, a judge is more likely to make assumptions drawing from her own values, which may consist of preconceived notions about the parent’s condition.
Judicial consideration of disability as part of the best interests analysis creates ample opportunity for discrimination against parents with disabilities. Because of the shortcomings of the ADA in this context,
courts must of their own volition fashion frameworks that are aimed at reducing such discrimination and attitudinal bias. Courts have already recognized disability as a somewhat suspect classification in the constitutional context
and should do the same in the custody context.
III. An Improved Standard
Given the ineffectiveness of current approaches to deciding child custody disputes in which one parent has a disability,
adopting an alternative to these approaches would increase the likelihood that parents with disabilities are given the treatment they deserve. As a threshold matter, section III.A inquires into two aspirational goals that would likely reduce discrimination against parents with disabilities in the family law system: (1) the elimination of the consideration of disability in best interests inquiries and (2) the elimination of the best interests standard. Recognizing that these goals are difficult to achieve, section III.B advocates for the adoption of a disability–nexus test. Finally, section III.C highlights other means by which states might deter bias in the family law system.
A. Aspirational Goals to Eradicate Disability Bias in the Family Law System
The current best interests regime cannot eliminate disability bias.
Perhaps Carney’s misimplementation
reflects an actuality that the approach cannot possibly remedy the core issue. And because disability continues to factor into the best interests equation under such a regime—even in such a markedly diminished capacity—judges are still able to decide cases that reflect attitudinal bias against those with disability.
This section inquires into aspirational goals that would reduce discrimination against parents with disabilities in the family law system. First, section III.A.1 advocates the elimination of consideration of disability in best interests inquiries. Second, section III.B.2 highlights how an alternative to the best interests standard might reduce discrimination.
2. Eliminating the Consideration of Disability in Best Interests Inquiries. — One could best limit discrimination by prohibiting inquiries into disability altogether. Elimination of judicial consideration of disability as part of best interests analyses would reduce speculation as to the effects of a parent’s disability on her child, particularly in cases in which the parent’s disability is not readily apparent.
And without such speculation, which is often the product of attitudinal bias,
courts would be less likely to discriminate against parents with disabilities.
Under a regime that would bar consideration of physical health and disability, courts would still be able to look at the ancillary effects of a disability but would not be able to inquire into the nature of the disability itself. For example, courts often look to a parent’s employment status and means—both of which frequently relate to a parent’s health status—when inquiring into the best interests of the child.
While courts would still be free to observe those factors, regardless of whether or not they are related to the individual’s disability, they would not be able to consider the individual’s disability on its own.
However, the fact that a number of states mandate the consideration of disability in inquiries into a child’s best interests
indicates that this is an implausible goal. Without the repeal of statutory frameworks that require inquiry into disability, courts will continue to be forced to look into parental disability and health when evaluating a child’s best interests.
2. Eliminating the Best Interests of the Child Standard. — The adoption of a framework alternative to the best interests standard might also serve the interests of parents with disabilities. One standard that has gained traction in the academic community is the approximation standard,
which generally assigns custody to the parent who assumed primary caretaking responsibilities prior to separation.
Inquiry into other evaluative criteria under this standard is, for the most part, limited to cases in which there is reason to believe that the child’s primary caretaker has been abusive or neglectful.
There is no inquiry directly into a parent’s health status. Family law judges logically cannot project attitudinal bias and thereby discriminate against parents with disabilities when the legal framework they apply does not inquire into disability in the first place.
Take the trial court’s decision in Carney as an example of how the adoption of this standard might reduce discrimination. In that case, the parent with the disability would clearly have obtained custody under the approximation rule since he had taken care of the children on his own for a period of five years while his wife’s “sole contact with the boys consisted of some telephone calls and a few letters and packages.”
Similarly, the trial court would not have had room to make discriminatory assumptions against the father,
as its inquiry would have been limited to the father’s caretaking role.
As with the elimination of consideration into disability, though, widespread adoption of the approximation standard in lieu of the best interests standard is unlikely given the entrenchment of the best interests standard.
Consequently, in the next section, this Note proposes an alternative that can be implemented as part of a best interests inquiry.
B. A Pragmatic Alternative: A Harm–Nexus Test
A framework that provides a set of defined criteria for judges to consider could reduce the likelihood that parents with disabilities will face discrimination in custody disputes.
Courts have already adopted such a narrow and defined inquiry for custody cases in which one parent is a member of the LGBT community: the nexus test.
Under the nexus test, courts consider a parent’s sexual orientation relevant to the best interests inquiry only if the opposing party can demonstrate that it will harm the child.
Courts should adopt a similar standard in custody cases in which one parent has a disability.
As with disability, many states formerly utilized an approach that viewed homosexual behavior as per se evidence of parental unfitness.
Pushing back on this approach, LGBT-rights advocates promoted a nexus test that banned consideration of a parent’s sexual orientation if a claimant could produce no evidence of its adverse impact on the child.
The nexus test would apply similarly to parental disability. Decisionmakers would be required to find a nexus between a parent’s disability and harm to the child as a threshold matter in considering disability under the best interests standard. If the opposing party can demonstrate by clear and convincing evidence that the other parent’s disability will harm the child, then the court can further inquire into the disability when inquiring into best interests.
If the court deems disability relevant to the inquiry, it would then consider the Carney factors, as it ordinarily might,
so as to ensure further protection against arbitrary decisionmaking.
While this approach would still largely make disability a focal point of dispute, the strict considerations to which the approach demands attention could at least reduce the likelihood that judges will make decisions purely on the basis of their own values.
This solution is not ideal, but it improves upon the Carney framework by requiring courts to further consider the effect of the parent’s disability on the child. Early scholarship that called for adoption of the nexus approach in the context of sexual orientation recognized that it presented the potential for abuse insofar as homosexuality was at the time “often viewed as immoral or unhealthy.”
But early proponents of the requirement further recognized that “[t]he only effective control against a decision based on prejudice, sub rosa, is a requirement that harm to the child be demonstrated before any factor . . . can be considered.”
Society similarly stigmatizes disability to the extent that it finds disability undesirable.
But those in the family law system cannot check prejudicial attitudes about disability in the parenting context unless they ponder whether disability might actually result in a tangible harm to the child.
In other words, what is key to altering prejudicial attitudes in the disability-custody context is that judges, as part of the best interests inquiry, think about the tangible effects of a disability rather than view it merely as another checklist demerit, like the child’s preferences or the parent’s means.
Application of the facts of Curry v. McDaniel
to the standard proposed here sheds light on how the standard would work in practice. This case provides an ideal example because it involved a physically disabled mother whose actions directly endangered the well-being of her child.
Curry, the mother in custody of the child, had been in a car accident with her child in the car; she chose to drive despite having a vision impairment that severely impacted her ability to drive and failing to possess a driver’s license in the first place.
The trial court awarded custody to McDaniel, the father, and the appeals court affirmed.
Under the proposed framework, a judge would first inquire into whether the claimant could demonstrate a nexus between Curry’s disability and harm to the child. If Curry had not been in a car accident or did not drive, the inquiry would end there. But because Curry chose to drive, despite her condition and lack of a driver’s license, and was in a car accident, the claimant can demonstrate a nexus between Curry’s disability and harm to the child. And though Curry averred that she was able to accommodate the detriment her disability caused,
she still opted to drive and therefore had essentially waived the availability of those accommodations. On these facts, a court could conclude that the father had met the burden of proving by clear and convincing evidence that there was a nexus between Curry’s disability and harm to her child.
The court would then apply the Carney factors as part of the best interests inquiry, calling specific attention to the second factor: how the person has adapted to the disability and manages its problems.
Because Curry drove on numerous occasions,
one could reach the conclusion that she failed to properly adapt to her disability, which risks harm to the child. In reaching this conclusion, and accordingly weighing the evidence on Curry’s disability against her, the court would then consider disability as one factor among the rest that are relevant to the best interests framework. The court would still weigh, on the one hand, Curry’s failure to properly keep tabs on her child’s hygiene and to monitor her child’s academic performance, and on the other, Curry’s current custody of the child, the fact that the child lived with a sibling, and McDaniel’s failure to pay child support.
C. Additional Potential Antistigma Measures
As this Note argues, individuals and professionals involved in custody cases are often prone to exhibiting attitudinal biases regarding parents with disabilities.
When courts are unwilling or unable to adopt the above-proposed solutions to this issue, some forms of redress may still be available. This section highlights two additional means by which courts can protect parents with disabilities from arbitrary discrimination in the family law system. Section III.C.1 presents a judicial framework—which can operate under the purview of the best interests standard as a minus factor—that would deter claimants from bringing groundless claims into disability. Section III.C.2 suggests further educating professionals in the family law system.
1. Penalizing Groundless Inquiries into Disability. — Family law scholars and custody courts alike often reference the Judgment of Solomon
in both developing theories concerning pervasive problems in custody law
and critiquing the best interests standard.
As recounted in this ancient parable, two women lived under the same roof, and each was the mother of a young infant.
One of the children died, and each of the women, standing before Solomon, claimed the other child as her own.
Solomon, unsure of the identity of the child’s true mother, declared that he would divide the child in two and give half to each mother.
One mother welcomed Solomon’s remedy while the other, fearing harm to the child, begged him to give the child to the other woman; in hearing this testimony, Solomon ruled that he would vest custody of the child in the mother who would have spared the boy.
Elster notes that in Solomon’s case, “[t]he crucial piece of evidence [Solomon] used for giving the child to one woman rather than the other was their behavior in the dispute itself.”
In making certain claims within the context of a custody dispute, a parent can reveal him- or herself to have character traits that bear directly on the resolution of the dispute.
How should judges construe such behavior within the best interests framework, particularly when it could result in adverse outcomes for the child? Elster notes that judges could take such behavior into account:
[A] Solomon-like judge might refuse custody to a parent whose tactics involve procrastination or derogation of the other parent. Since both tactics can be expected to impose additional pain on the child, the conscious use of them shows a lack of concern for the child that disqualifies the parent for custody.
Elster does not view such judgments as resolving the issues he associates with the best interests standard, but rather sees it as creating a judicial Catch-22: “The more forcefully a parent presses a custody claim, the more he proves himself unfit for custody.”
But perhaps this inquiry is worth further consideration in cases in which an offending parent’s behavior invades upon the rights of the other parent.
A parent’s willingness to invoke disability in a custody dispute, for example, may be telling, particularly when such claims are baseless. Recall the case of Kaney O’Neill, described above.
Prior to splitting with O’Neill, her ex-boyfriend, Trais, did not doubt her ability to parent her child, despite her quadriplegia.
He was well aware of the extent to which O’Neill had prepared for mothering a child as a quadriplegic and thus likely believed that she would be a fit parent. It was not until after their split that he protested to her acting as the primary caretaker for their child. Given O’Neill’s preparations, such a claim had the potential only to deprive the child of a suitable and loving caretaker. A willingness to baselessly invoke disability in custody disputes ultimately demonstrates a lack of concern for the child, whose confidence in the parent may be called into doubt by one parent’s distrust of the other on disability-related grounds. Invocation of disability in a custody dispute also sends a message to the child that disability may have a tangible impact on one’s capacity to parent.
Similar issues arise when one parent seeks joint custody and the other does not. Many states have adopted “friendly-parent” provisions in order to promote active participation by both parents.
These provisions penalize parents who refuse to seek joint custody arrangements because developing relationships with both parents is thought to be, as a general matter, best for the child.
Presuming that baselessly calling a parent’s disability into question during a custody dispute is not in the best interests of the child, penalizing such claims would have the effect of reducing bias against disability—similarly to how “friendly-parent” provisions have further promoted and perhaps demonstrated the value of joint-custody arrangements.
Consequently, courts should consider penalizing parents who make groundless allegations concerning the impact of the other parent’s disability on the child by making such inquiries count against them in the best interests analysis. Consider O’Neill’s case once more. O’Neill extensively prepared for motherhood in the face of her disability and had a widespread support network of which her boyfriend was aware.
With such adaptation measures in mind, O’Neill’s disability never should have been central to the dispute. Trais’s resort to baseless attacks on her condition, rather, should have been met with condemnation.
2. Educating Family Law Professionals. — Social science studies reveal that a considerable source of bias against disability stems from a lack of information or awareness about it.
One might reduce bias by providing those who are tasked with making decisions in custody proceedings—that is, family law judges and child custody evaluators—with more exposure to parents with disabilities.
For example, states may require family law judges and custody evaluators to undergo disability-related educational training sessions. While evaluators and judges often hear from experts at trial, such experts often do not have experience in strictly assessing the relationship between parental disability and child rearing.
Those who work extensively, or even exclusively, with parents with disabilities thus ought to teach decisionmakers.
Training sessions can take an interactive form. Perhaps decisionmakers should be required to observe physically disabled parents’ interactions with their children in the home setting. Were decisionmakers to view such interactions, they may better understand how physically disabled parents can successfully raise their children with the aid of accommodations.
Both interactive and traditional training exercises would inform decisionmakers about the relevance of disability to parental skills and the child’s well-being, all the while reinforcing the notion that disability cannot be a per se minus factor in the best interests calculus.
This Note demonstrates that courts must change the manners in which they evaluate custody disputes to prevent discrimination against parents with disabilities. The best interests standard’s indeterminacy inherently invites bias and speculation. Utilizing a more certain approach when one party to a custody dispute has a physical disability would reduce the likelihood that such biases will govern and increase the likelihood that parents with disabilities will be treated equitably. Courts would therefore be best equipped to change how they view disability in custody disputes if they reconsider how it factors into best interests analyses. Presumptions of parental unfitness associated with parenting with disability, whether they take the form of a per se rule or mere minus factors, should be eradicated and replaced with a framework that would minimize the inquiry into disability. Ultimately, the law should protect those like Kaney O’Neill, not stigmatize them.