Absent intent or authority as legal advice. This may make attorneys nauseous.
Family court and custody battles are nightmares. With proclaimed concern, yet little factual mitigation of the child’s needs, the family court system becomes a medieval joust that ends just as gruesomely.
It’s gut-wrenching. However, I have been privileged to advocate for participants in this kangaroo court setup, and while there is much work to do, I’ve seen some real shocking dynamic shifts when the Americans with Disabilities Act (ADA) is effectively invoked and used. There are several reasons for this shift. Allow me to walk you through them.
1. The ADA removes immunity from judges, guardian ad litems, CPS workers, and other state actors for violations of ADA. They are accustomed to having all of the power in the situation, and bullying the litigants. So, when the ADA is invoked, it’s bizarre how they react. Judges recusing after my calling them out on ADA breaches is a common occurrence. One judge in Michigan, who had national attention for jailing three kids because they were afraid to connect with their father, who they had seen abusing the mother, was a judge I later met.
Here’s how that interaction went down…
2. The parents often have either domestic violence, domestic abuse, and/or ADA matters that can shift the dynamic of the way the court is required to act. My activity in cases is on the administrative side.
Here’s how that looks:
Understand that anything on the administrative side concerning ADA Access is something that lawyers are AFRAID to aggressively advocate. Don’t take my word for it. The lawyer that writes the book Understanding The ADA for the American Bar Association says it clearly.
When I work with clients who have lawyers retained, I alway tell the lawyers that they are going to have to make me the “bad guy” if they don’t want to interfere (prohibited act under ADA) with my aid and encouragement of the client receiving equal access.
Lawyers are quick to admit that they are impotent with this matter. I am still waiting for an attorney to full-bore attempt to hold a state judge accountable for ADA violations in federal court. I may almost be there on one case I’m working on.
3. The children often have issues that could be considered disabilities which would require the court to accommodate them. In one case I’m currently working on, a judge and a guardian ad litem (GAL) seem to be colluding to deprive disability rights to a child involved in a custody matter.
The GAL flat out ignored disability matters presented to the GAL, and when I wrote the GAL a letter alleging that they were outright denying equal access, the GAL (an attorney) motioned to recuse themselves. The judge who is presumed to have a conflicted relationship with the GAL, is ordering the disability matters to be brought into open court, which is intimidation and coercion under 28 CFR §35.134(b). (If you watch the Gorcyca video above, I call her out for this very prohibited act.)
What happens in situations like these, is that if the disability matters are not equally considered for access to court, the subject matter side of the court is acting with disregard to the ADA, and for that, there are also claims that can be made under the ADA.
Lawyers are required to provide equal access under the ADA. From my experience, lawyers are poorly trained and/or have little to no knowledge of how the ADA works.
I’m happy to train them, and have done so. It’s just not a priority in law school. The ADA is not a lucrative field for lawyers to get into… Most lawyers will willingly admit that they learned very little about the ADA in law school.
4. How does the ADA change things in court? Courts are accustomed to running very fast, without regard to the idiosyncrasies that an ADA matter can bring to light. What invoking and receiving accommodation does, is to slow things down a bit, so that, for instance, people like me, with communication disabilities, can be involved. Barriers can be put up to separate abuse victims and perpetrators, and there are a host of accommodations that can be requested. I design case-specific accommodations for clients with invisible disabilities.
TBI and even some PTSD clients, for instance, would need CART (Computer Aided Real Time transcription) and the ability to record the proceedings, so that they can mitigate memory recall issues. Judges hate these type of requests. My observation is that anything that makes the court more accountable, or it’s inner workings more visible, is something that judges hate to have.
But when the adrenaline response is kicked in, communicating is difficult for abled individuals. This is amplified for persons with disabilities.
And yes, judges fight back hard. I’m accustomed to that. I live for the joust.
If you need help with a custody or family court matter, reach out at adarights (at) protonmail (dot) com.
P.D., JAY V SHORE, as Certified ADA Advocate