Disability Law Journal

Courts regularly consider a parent’s physical disability in child custody disputes. At times, they go as far as to invoke physical disability as a minus factor that weighs against granting custody to that parent. This practice often reflects family court judges’ attitudinal biases, which are premised on ill-conceived notions of how physical disability actually affects one’s ability to parent. Because child custody adjudication affords judges considerable discretion via the best interests of the child standard, the result is state-sanctioned discrimination against parents with disabilities who are party to child custody disputes. These results predominate despite the fact that recent social science literature concludes that outcome sfor children of parents with disabilities are substantially similar, if not identical, to those of parents without disabilities.

As is, neither antidiscrimination law nor family law can remedy this problem. This Note aspirationally advocates eliminating consideration of physical disability in custody disputes altogether, but it recognizes that this goal is unrealistic given entrenchment of the best-interests standard and the fact that many states statutorily mandate inquiry into disability in custody disputes. Consequently, it proposes that judges should utilize a nexus test when considering physical disability in custody disputes.