Senate Bill Would Protect Rights of Disabled Parents

By Margaret Johnson and Glenn Sacks

Maria knew that her battle with multiple sclerosis would be a hard one, but she never dreamed it might cost her her daughter.

According to Senator Rod Wright’s office, Maria and her ex-husband shared 50-50 custody of their 12-year-old daughter until he refused to allow Maria access, claiming Maria was too disabled to care for her. Maria explains:

“I have a physical disability but I have been an exemplary mother. It is devastating for both parents and children to be wrenched apart by an ex-spouse seeking an unfair advantage in a divorce.”

After a lot of heartache, Maria did get her daughter back under the original 50-50 parenting schedule. Yet many California parents with disabilities are being driven to the margins of their children’s lives because their disability is being used as a way to deny child custody or visitation.

Currently under the laws relating to child custody, a disability can be used as a reason to deny custody or visitation. This can lead to unnecessary and expensive litigation, even in cases where the parent with a disability had been successfully parenting the children for many years prior to a separation or divorce.

Nationally, one in six parents is disabled. They’re poorer on average than nondisabled parents, and their ability to fight long, expensive court battles to defend their relationships with their children is limited.

Wright’s SB 1188, which is currently on Governor Schwarzenegger’s desk, will address this problem by adding a section to the California Family Code providing that a parent’s disability “may not form the basis for an order granting custody or visitation to another party, or for an order for imposing any condition or limitation on an award of custody to or visitation by the disabled parent, unless there is a finding by the court that [such a] grant…would not be in the best interest of the child.”

SB 1188 increases the burden of proof on the parent who raises disability as an issue and will serve as a deterrent to unnecessary litigation. It will reduce litigation costs and court calendar time as well.

SB 1188 is sponsored by Disability Rights California, Fathers and Families, and the American Retirees Association.

Ella Callow, Esq., the Director of Legal Programs for the National Center for Parents with Disabilities and their Families, explains: “California’s current laws relating to parents with disabilities are very poor. This bill is an important codification of the California Supreme Court’s Carney decision, which has helped protect parents with disabilities.”

According to Callow, while a few small states have passed beneficial laws on this issue, California would be the first major state to provide parents these types of protections. In addition, the bill will help military parents who became disabled while serving their country.

Timothy Sayre, a San Diego father of three, hopes that SB 1188 will help parents like him. Sayre’s three children were moved out of state by their mother in 2002 but, as part of a visitation agreement, they always spent their summers with Sayre. Sayre became disabled almost two years ago, and spent much of this spring battling to maintain his summer parenting time. After a difficult court battle during which his disability was used against him, Sayre lost some of his parenting time. He says:

“I use a wheelchair but I can still parent my children. My time with my 14-year-old daughter was cut way back, and I lost time with my sons, too. Not only should I have not lost this time, but I shouldn’t have had to fight this battle to begin with. Do my children love me and need me less because I use a wheelchair?”