The court of popular opinion often condemns where the law protects. Consider your neighborhood hoarder. Legally, hoarding can be a disability (disposophobia), but perhaps everyone avoids that neighbor. If you have a disability, ignore popular opinion and listen to your lawyer: you can gain custody of your children.
Are You Under Guardianship?
If you are disabled adult Virginia man, you may not be eligible for custody of your children if you are under guardianship. If, because of “mental incapacity” you are under another adult’s care, you are adjudicated to be ineligible (under Virginia’s Constitution) to vote. This is not exclusive to Virginia and puts caring for your own children even further out of bounds. If you are not trusted to vote intelligently, how can you be trusted to care for children?
Most disabled Virginia men are not, however, under guardianship. Disability has a very wide spectrum of issues, from physical issues to brain damage to mental health problems. The variety of disabilities is so vast, no one-size-fits-all answer is available to judges.
For custody, the judge is primarily interested not in you and your disability, but in your children.
What are the Best Interests of the Child
In Virginia, the state laws work to help the most vulnerable among us first and then protect others in a rising hierarchy of ability. So children always come first, as enshrined in Code of Virginia § 20-124.3:
In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to § 20-103, the court shall consider the following:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent; …
Your age, physical condition, and mental fitness are all on trial in a custody hearing. This puts your disability front and center for the judge to consider. If your ex-wife or the mother of your children tries to use your disability against you, you need to be prepared. You need a solid legal strategy and an excellent family law attorney.
Do You Have a Physical Disability?
A physical disability may give you the appearance of being less fit to care for your child than your ex; it becomes your job to demonstrate your abilities, not highlight your limitations.
You and your attorney should consider the realistic ramifications of custody. Perhaps you do have physical challenges making the care and maintenance of a small child too difficult; on the other hand, being limited in range of motion may not be a problem in caring for a teen.
While discrimination due to disability in most instances is illegal, the law in Virginia clearly gives the judge wide discretion in deciding which parent is the best fit for the children.
Have You Been Diagnosed with a Mental Illness?
The American Bar Association (ABA) outlined the challenges for parents in a piece on disability and custody. An astounding 70 to 80 percent of adults with mental illnesses had their children removed from their custody, says the ABA.
Your own struggles with mental clarity can be unpleasantly and graphically laid bare in a custody hearing. You and your attorney should focus on your progress, positive treatment, and prognosis in presenting to the court your own rationale for keeping your kids.
Do not expect your ex and her attorney to tread lightly here. If, as you feel yourself exposed and attacked in court, you remember that the state must work in the best interests of your children, you will be in a better position to present the court with a face of a responsible, caring parent.
What Your Custody Attorney Can Do
A good child custody attorney will do more than just show up to represent you in court to win child custody. Take a tip from the ABA, and find a lawyer who will:
- Connect you with appropriate disability services so you have all the social service help Virginia can provide, demonstrating to the court your active efforts to construct a well-rounded, nurturing life for you and your kids
- Get an adapted parenting assessment to present to the court
- Assist you with making a claim under the Americans with Disabilities Act (ADA) to demonstrate you are a qualified person with a disability requiring “reasonable accommodation” of the disability by a public entity (the state of Virginia).
- Appeal any finding of being an unfit parent based solely on the disability if the court (or judge) does not admit evidence by experts and other witnesses
Choose the right law firm to protect your rights as a disabled Virginia man, to secure custody of your children, and to gain you the reasonable accommodations provided by federal law. With a call to The Firm For Men at 757-383-9184 or with a contact online, you can connect to an attorney experienced in working with disabled Virginia men to secure their rights under all aspects of family law.
