Legal Question in Disability Law in New Jersey

Protections granted by ADA in divorce matters

I am a disabled (by disease) physician with a young child product of this marriage. My estranged wife is divorcing me. One of the angles she is trying to use against me is that the existence of a disability makes me a poor father and therefore I should not be allowed to take the child fishing on the water, etc. because I am disabled. Also, for the reason of disability, I should not have much contact with the child because, due to my diseased state, I might not be attentive to whatever the child might be doing and he could get hurt. She and her counsel have subpoenaed all medical records from my past in an attempt to bolster this argument,which I have so far been able to block on other grounds pending a hearing. Does the ADA have any impact on situations such as mine? Can they discriminate against me solely on the basis of a documented disability? Can I use the ADA as a defense to not provide medical records and to challenge their contentions concerning child rearing. I should state that my medical condition was never a consideration until she moved out and needed an excuse for doing so. I am perfectly capable of taking care of my child and being a good father and resent what is happening. Thank you.


Asked on 5/03/04, 1:09 pm

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

Re: Protections granted by ADA in divorce matters

The fact that you are a person covered by the ADA,

unfortunaterly, would not appear in and of itself to afford you any protection per se from your wife's apparent efforts in your divorce action to have you found by the court to be a parent whose fitness to care for his child is in question, and that, therefore, she(your wife)should be awarded primary physical custody of your child (or something like that) as well as, perhaps, substantial veto power over any arrangements involving your right of visitation with the child.

In matters involving divorce, child custody and visitation, your adversaries, apparently, in most (if not all) jurisdictions, are permitted to use your disability to argue to the court having jurisdiction over these matters that it must necessarily impair your fitness as a parent which the court should take into consideration in deciding what is in the child's best interests.

Your task (or that of your attorney) must necessarily involve presenting a countervailing argument(with presuasive proof)to the court that your disability in no way fundamentally impacts your ability to be a very competent and caring parent for your child and that the court should only give it very minimal, if any, weight in determining what is in the proverbial best interests of the subject child.

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Answered on 5/03/04, 4:25 pm


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