Quadriplegic Mother Fights for Custody of Son

"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."

Life and the Law

Allen said other issues can lead to a disabled parent losing a child, if the particular circumstances warrant it.

"You don't lose your kid for having a handicap, unless you're proven to be an incompetent parent who is unable to care for your child," she said, explaining the child would have to be abused and neglected.

In this case, she said, "what the father is seeking is completely within his rights." But, she added, "What he cannot do successfully is to demand that she have all her custody rights eliminated."

Allen was somewhat critical of Trais, the father. As for claims that O'Neill cannot raise the child, Allen said, "She was able-bodied enough to have sex with him."

"From a bioethics point of view, this case is not particularly compelling. To me, it's a very straightforward example of disability rights where the law is completely on the side of the disabled person."

While it is yet unclear what makes the father a better parent, she said, the judge in the case will be pressed to make a decision that does not hang on O'Neill's disability.

That disability says little about ability to parent, said Tuleja, the disability advocate.

"Even if someone is helping a parent who has a disability, the parent can orchestrate so they remain central," she said, explaining that the child understands that the disabled parent is directing their upbringing. "It's the richest part of parenting…that psychological and emotional connection to the child."

And for many parents, she said, some help is needed, even if they are not disabled. A mother with multiple sclerosis may lack energy to deal with a child in the afternoon and need a nap, she said, but she can hire a babysitter and will not have her parenting ability called into question.

"What we really are fighting for is that all parents get appropriately assessed," said Tuleja.

Truth and Consequences

While disability itself does not have much, if any, bearing on a parent's fitness, in O'Neill's case, other factors may be at work.

Media reports in the Chicago Tribune and Sun-Times have given contradictory accounts of O'Neil's accident, possibly revealing that O'Neill has not always told the full story of her accident.

O'Neill sustained her injuries when she was knocked off a balcony during Hurricane Floyd. The balcony was lower than regulations dictated, but she was found to be partially negligent, possibly owing to alcohol, according to the Virginia court ruling on her lawsuit against the housing company, meaning she could not collect damages from the housing company under Virginia law.

Experts say the incident itself does not bear on her ability to raise a child, or how a court will judge her.

"The fact that she was injured, perhaps doing something irresponsible, will weigh, but not greatly," said Caplan. "Courts can be relatively forgiving…if it's a single incident."

"She may have been in the past irresponsible in some way," said Allen. "Those kinds of things are way less extreme than things which parents are accused of every day which never lead to the loss of a child."

But her honesty in court may be more relevant.

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