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."

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.

"She's got to be very careful to be truthful, accurate," said Caplan. The court will be asking, "Is this person going to imperil the well-being of her baby in any way?"

But, he added, "That would be true whether she was paralyzed or not, in a custody dispute."

Allen does not believe the court will be concerned with what O'Neill may have told the press, and Caroline O'Neill's mother agrees that her daughter's actions 10 years ago have nothing to do with custody now.

"Whose business is it what actually happened?" said Allen. "She doesn't owe the public an explanation for why she is disabled."