Resenting Disabled Parents in Family Court - ABA YLD 101 Practice Series

By Charlyne Peay

Family Court can be a particularly dreadful place. It is, by its very nature, designed to set off a firestorm of emotions and anxiety for litigants. Its cases involve the most intimate and personal matters. Matters which, at their core, threaten an individual's sacred constitutionally-based freedoms: the right of privacy, the right to raise your children without unnecessary government intervention, and the right to be free from illegal search and seizure.

Family Court can be especially challenging for people who are poor, racial minorities, or people with psychiatric disabilities. For these communities, navigating the labyrinth that is Family Court is extremely challenging. Usually poverty, gaps in resources, lack of education, and an inability to afford good legal counsel are the contributing factors to difficult experiences in Family Court. Parent-litigants with psychiatric disabilities must face an additional set of challenges; overcoming stigma and the public perception that often surrounds mental illness.

Many of psychiatrically disabled clients enter Family Court saddled with the stigma associated with mental illness; a stigma which often produces shame, a tremendous amount of self-doubt, and withdrawal from and distrust of societal systems. This stigma, coupled with the public's perception--a perception held by lawyers, judges and advocates-- that mentally ill people are violent, lack the aptitude to provide adequate care for their children, and are generally unfit to parent, precipitates termination of parental rights proceedings. With these factors stacked against them, one can see why Mental Health America reports that parents with disabilities lose custody of their children at a rate of 70%-80%.

Advocates for clients with disabilities often serve as the first line of defense and most important advisers for these clients. To ensure that disabled clients have a fair opportunity in court, it is essential to provide them with first-rate advocacy; advocacy which is a mix of legal advice, social work support, and technical assistance. If you represent clients with disabilities, share the following tips with your clients to assist them in taking control of and self-direct their Family Court cases.

  1. Be Proactive:
    1. Maintaining mental health allows you to be a better parent and can stave off unnecessary state involvement with your family.
      1. If you are a parent with mental illness and are currently receiving treatment, resolve to continue treatment and maintain your medication regiment.
    2. Don't be ashamed of your illness.
      1. As a result of stigma attached to mental illness, many parents report that they are afraid to seek mental health treatment for fear of losing their children to foster care. This is counterproductive and is likely to harm your case in the end.
    3. Plan ahead.
      1. In the event of temporary hospitalization, it is important to have previously designated someone to care for your children. This will prevent your children from unnecessarily being placed in foster care, while you are receiving care.
  2. Educate and Empower Yourself:
    1. Familiarize yourself with relevant state and Federal legislation such as Adoption and Safe Families Act (ASFA), which allows a state to terminate your parental rights after a prescribed amount of time.
    2. Seek out legal advice.
      1. Find out if your state law entitles you to free legal representation.
    3. Find peers who had previous involvement in Family Court. Learn from their successes and failures.
    4. You cannot and should not be coerced to sign papers that surrender your custodial or parental rights to your child.
      1. Be careful what you sign. Discuss all documents with your attorney before signing anything.
  3. Be Your Best Advocate:
    1. Ask questions of your lawyer, the Department of Social Services, and Child Protective Services worker and, if relevant, the social worker assigned to your case.
    2. Tell the case worker and your lawyer what services you might need to help you be a better parent and expedite the return of your children from foster care.
      1. Find out if there are additional resources or if the resources being provided can be reasonably modified to accommodate your disability.
    3. Never miss appointments or court dates without a compelling reason.
    4. Maintain contact with your child as much as possible. Try to never miss a visit. If your child is age-appropriate talk to her or him about your mental illness.


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About the Author

Charlyne Peay is a Child Welfare Specialist in the Policy Division of the Children's Bureau at the Department of Health and Human Services in Washington, DC. Mrs. Peay is admitted to practice in New York, New Jersey, and the District of Columbia.

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