ISBA session offers tips in dealing with parents of a child with disabilities

Though judges are generally thought to be the gatekeepers of the law, in family law situations, parents may try to guard the gates of access to their children.

This type of gatekeeping, as Merillville attorney Deb Dubovich describes it, happens when one parent acts in a manner that either facilitates or restricts the other parent’s relationship with the child. This issue can be particularly exasperated in cases in which the child in question has some sort of disability, Dubovich told an audience at the Indiana State Bar Association’s Solo and Small Firm Conference last Friday.

In keeping with popular belief, studies show that parents who have children with disabilities are more likely to divorce, Dubovich said, and those divorces can lead to parental gatekeeping tendencies. When dealing with such cases, there is a continuum of parental behaviors that attorneys should be aware of, she said.

The first, and least marginalizing, step on the continuum is the “parent as expert,” or parent who has done extensive research on his or her child’s condition. Because of that research, the parent is inclined to believe only they know what’s best for the child. Though this step is the least exclusive, it still involves an element of marginalization against the other parent, Dubovich said.

Next, there is the parent who “overidentifies” with their child’s condition. This could be a father who dealt with ADHD as a young boy and is now watching his own son deal with the same issues, or, likewise, a mother who was diagnosed with autism whose child now has the same diagnosis. Though sharing experiences with a disabled child can help a parent be more empathetic, Dubovich said it can also cause the parent to be unable to see the unique issues in their child’s experience that might be different than their own experience.

In the middle of the spectrum is the parent who thinks they are the only parent who is capable for caring for the child. This level is more restrictive than the “parent as expert” because it causes one parent to put undue restrictions on the other parent, rather than merely holding the belief that they are the most qualified to care for the child, Dubovich said.

Fourth, one parent can try to exclude the other from the disabled child’s life by excluding their name from school or medical records or not telling the other parent about important milestones or events in the child’s life. That level leads into the fifth and most exclusive, which is one parent who overtly involves the child in negativity toward the other. This could be something as simple as encouraging the child to discuss what the other parent has done “wrong,” such as feeding them fast food on a regular basis, yet is the most harmful because the child is put in the middle, Dubovich said.

Keeping the continuum in mind, Dubovich said there are several steps attorneys can take to help combat parental gatekeeping and resolve custody cases in the best interests of the disabled child and the client.

For example, if an attorney is representing the parent who is being marginalized, they could suggest that parent enroll in parenting classes to improve their parenting skills and help earn the trust of the judge and the other parent. If the client is on the “parent as expert” end of the spectrum, the attorney could suggest mandatory mediations between the parties to ensure both parents are sharing relevant information about their child with the other.

Further, Dubovich said when gatekeeping tendencies are present in a child custody case, especially cases in which the child has special needs, it’s important for attorneys to remember that joint legal custody may not be the best option. Though one parent may be more aware of the needs of the child’s diagnosis than the other, the tension between the parents could be detrimental to the disabled child’s well-being, Dubovich said.

To that end, she encouraged her audience to appropriately frame the specific issues before the judge, rather than allowing parental gatekeeping to control which questions come before the court. When a case clearly shows the most important issues facing a disabled child’s well-being, the northern Indiana attorney said the court is more likely to make a ruling that will be in the child’s best interests in the long run.