Legal Rights of Persons With Disabilities - Ossh.com

CHAPTER 6
PARENTAL RIGHTS
I. PARENTAL FITNESS
Persons with disabilities have the same right as anyone else to bear and raise children. A parent's
or child's disability does not by itself indicate a need for intervention by child protective services. A
parent's physical disability cannot be used as a basis to deny him or her child custody, unless the disability
prevents the parent from exercising care and control. (Welf. & Inst. Code,
'' 300, subd. (b) and 16509.2.)
For example, one California appellate court has held that termination of the parental rights of an
individual with a developmental disability required a showing by clear and convincing evidence that
services designed especially for her needs had been tried without success, and that despite such services it
could be shown that the child's best interests required that she be declared free for adoption. (In re Victoria
M. (1989) 207 Cal.App.3d 1317.)
II.
CHILD CUSTODY
In California, child custody decisions are made according to the best interests of the child. A
person cannot be denied custody solely because he or she has a physical disability. A parent's health or
physical condition may be considered in the custody decision, but cannot be presumed to affect the child
negatively or to make the parent unfit to have custody. The special contributions a parent with a disability
may give to the child's development must be considered. A court may deny custody to a parent with a
disability only if the parent's condition will have a substantial and lasting negative effect on the child. (In
re Marriage of Carney (1979) 24 Cal.3d 725.) A parent with a mental disability may be denied child
custody only if suffering from a mental incapacity or disorder which renders him or her unable to care for
and control the child adequately. (Fam. Code, ' 7827.)
III.
ADOPTION
Persons with disabilities can adopt children. All adoptions are based on the best interests of the
child. Although the health of a prospective parent is one of many factors in an adoption decision, a parent's
disability cannot be the sole reason for denial. (Adoption of Richardson (1967) 251 Cal.App.2d 222; Fam.
Code, ' 8612.)
The Adoption Assistance Program provides assistance and financial aid to prospective adoptive
parents of "hard-to-place" children. A hard-to-place child includes a child with physical, mental,
emotional, or medical disabilities. (Welf. & Inst. Code, ' 16120; Cal. Code Regs., tit. 22, ' 35325 et seq.)
An adopted child with a disability who requires medical treatment may be eligible for care at no cost
through the California Children's Services Program, regardless of the income of the adoptive family.
(Health & Saf. Code, ' 123965.) Expenses related to the adoption of a child with special needs may also be
tax-deductible.
54