Among society’s oldest and most destructive biases is the belief that people with disabilities are presumptively unfit to produce and care for children. Only a century ago, a majority of states applied mandatory sterilization laws to people with disabilities. Though we may be progressed a long way from such brutality, many biases remain. The varied application of the “best interest of the child” standard in child custody matters often reveals a persistent prejudice. At Legal Clinic for the Disabled (LCD) all of our clients have disabilities, and we represent them in an array of civil matters. Thus, LCD confronts the challenge of effectively representing custody litigants with disabilities under the best interest of the child standard.

The Standard

All states apply the “best interest of the child” standard to custody decisions. The Pennsylvania Supreme Court historically expressed the standard explaining, “the controlling consideration is the welfare of the child, including physical, intellectual, moral, and spiritual well-being,” in Commonwealth ex rel. Graham v. Graham, 80 A.2d 829, 833 (Pa. 1951). Today, Pennsylvania courts determine a child’s best interest through analysis of 16 factors along with certain other mandated considerations. See 23 Pa.C.S. §§ 5328, 5329, 5329.1. Courts must give weighted consideration to safety-related factors. The law specifically requires courts to consider alcohol and substance use disorders, and the “mental and physical condition” of parties and household members. See 23 Pa.C.S. § 5328 (14), (15). Therefore, two factors expressly require consideration of disability while disability may influence a judge’s perception of other factors. 

The Problem

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