Quadriplegic Mother Fights for Custody of Son

Dec. 23, 2009— -- A quadriplegic mother is fighting her ex-boyfriend in court to retain custody of their son. The ex-boyfriend claims she cannot be a competent mother because of her disability. It is a case that touches on important questions about the rights of the disabled.

Kaney O'Neill, 31, lost the use of her legs and much of the use of her arms 10 years ago when she fell from a balcony in Newport News, Va. Now, as she tries to raise her 5-month-old son, Aidan, she is locked in a court battle with her ex-boyfriend, David Trais, over custody rights.

Trais' attorney did not return a call from ABCNews.com seeking comment. Caroline O'Neill, Kaney O'Neill's mother, said her daughter recently retained an attorney who has told her she cannot speak about the case. Kaney originally tried to represent herself.

"I cannot see how someone's inability to use their body makes them unable to be a parent," said Allaina Humphreys, a friend of O'Neill's who has the same level of disability and, with her husband, has three children -- all of whom were born after her injury. "As long as you have someone to make up for what you physically can't do [as O'Neill does], there's really no basis to the allegation that her ex-boyfriend is making."

Disability is something shrouded in misunderstanding, and ethicists say that may be a part of this case.

"Part of it, to be completely honest, is because people don't know how parents or people with disabilities process," said Christi Tuleja, an occupational therapist who works with Through the Looking Glass, an organization that advocates for parents with disabilities. "I think a part of it is just a lack of education. The other part of it, in family court, is the spouse is looking for any way they can to get the child away from them."

Humphreys agrees that there is some bias against the disabled, and it's unclear if that carries over to the courts.

"I really hate to think that's the case," she said. "I think there's probably a lack of knowledge, because I know people are surprised to know I have children to start with."

The courts, experts say, typically do not believe a disability is reason for a parent to lose custody of a child.

"Basically, disability would not disqualify someone, in and of itself," said Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania. "Many people with severe disabilities and moderate disabilities have been wonderful parents."

Caplan said a court will use one standard for determining custody: "Best interest of the child. The court will not care about the emotions of the parents; the court will only care if the child is put at risk."

"There is a best-interest-of-the-child standard that guides child custody," said Anita Allen, a professor of law and philosophy at the University of Pennsylvania. "Many disabled parents have custody of minor children."

Also, she said, "Why should the father have custody just because the mother is disabled? The law protects the interest of parents; even disabled parents have the right to raise their children without any bias against their disabilities."

The standard is strong enough, Caplan said, that if an able-bodied parent is, for example, alcoholic, custody of a child could be awarded to a disabled parent with a more stable home life. The primary obstacle for a disabled parent, he said, is showing that he or she has the finances and a support network to help raise the child.

"Most likely, the woman is going to have to prove that she has support and assistance in a very impressive way because she is so severely disabled," said Caplan. "Shared custody is what I would predict here."