Mother’s Disability Featured in Custody Dispute

by Cara on December 23, 2009

in bigotry, courts, disability, discrimination, parenthood, reproductive justice

Kaney O'Neill, a 31-year-old white woman with blonde hair, sits in her powerchair at home with her infant son Aidan strapped to her chest. Aidan wears a red onsie and apears to be gurgling. Kaney is wearing a gray and black striped sweater, and has a broad grin on her face.

Kaney O’Neill is a 31-year-old mother with a 5-month-old son. Her ex-boyfriend, and her son’s father, is now waging an ugly custody battle against her. So far, it’s an experience that countless parents have endured. What makes O’Neill’s story newsworthy, if not rare, is the fact that she has a disability — and her ex is using that disability as evidence that she is an unfit parent.

In September, Trais sued O’Neill for full custody, charging that his former girlfriend is “not a fit and proper person” to care for their son, Aidan James O’Neill.

In court documents, Trais said O’Neill’s disability “greatly limits her ability to care for the minor, or even wake up if the minor is distressed.”

O’Neill counters that she always has another able-bodied adult on hand for Aidan — be it her full-time caretaker, live-in brother or her mother. Even before she gave birth to Aidan, O’Neill said, she never went more than a few hours by herself.

The custody case, expected back before Cook County Judge Patricia Logue next month, raises profound questions about what rights disabled parents have to care for their own children.

Ella Callow, the director of legal programs for the National Center for Parents with Disabilities and their Families, said disabled parents are incorrectly “perceived as unable to perform to standard.”

“No judge wants to be the judge who sends a child home when the child gets hurt,” said Callow, of the Berkeley, Calif.-based advocacy group.

Callow said the bias against disabled parents is such that judges tend to grant custody to an able-bodied partner “even if they have a history that might usually be a heavy mark against them — not having been in the child’s life, a history of violence, etc.”

What Trais is attempting is repulsive, wrong, and inexcusable. But the bigger problem is that parents who try to pull this type of nonsense have a whole lot of backup. It ranges from the multitudes of ignorant online commenters who have agreed with him, to the judges who have ruled previous custody cases based on one parent’s disability, to complete outsiders who feel the right to speak on the matter as experts (emphasis mine):

But Howard LeVine, a Tinley Park attorney not affiliated with the case, said Trais’ concerns are legitimate and may hold legal weight.

“Certainly, I sympathize with the mom, but assuming both parties are equal (in other respects), isn’t the child obviously better off with the father?

LeVine, who has specialized in divorce and custody cases for the last 40 years, pointed out that O’Neill would likely not be able to teach her son to write, paint or play ball. “What’s the effect on the child — feeling sorry for the mother and becoming the parent?”

Well here we see a bias exposed in all of its glory: you see, Mr. LeVine, all things being equal, the disability wouldn’t factor in to this decision at all.

The fact of the matter is that if O’Neill were not able to access the support she requires in caring for Aidan, that would be far from a failure of parenting, but a result of our society’s ableist structure. But, in this case, O’Neill actually does have access to those resources. She is not raising Aidan alone, she is raising him with the assistance of her full-time caretaker, her mother, and her brother who lives with her.

And so, it seems to me that the allegation being made against O’Neill is not that she is failing to ensure proper care for Aidan. The allegation appears to be that she is failing to care for Aidan entirely by herself, without any outside assistance.

This is flat out ableism. The assumption that one is not as valuable, responsible, or worthy because they rely on support systems and the help of others is blatantly denigrating to people with disabilities. Specifically with regards to parenting, it also has a history of being incredibly sexist, and I imagine that this is playing into the response to O’Neill’s parenting, as well.

Mothers are constantly ridiculed and reviled for not being able to do everything at once. Mothers who use daycare, babysitters, familial support, and the help of friends, are frequently looked at as lacking in maternal skill and maternal love. And while even mothers in heterosexual couplings tend to take on the bulk of childcare, this prejudice hits single mothers particularly hard. It’s true that some have in fact had to cope entirely on their own, and are doing so as we speak. But no one should ever have to. And looking to one’s community for help should never be used as a mark against their parental fitness.

But that’s exactly what those onlookers judging O’Neill now are doing. It’s also what actual judges have done in the past when they’ve ruled against disabled parents in custody disputes, even when the other parent has a history of neglect or abuse. In other words, many times over, it has been decided that an abusive and neglectful parent is a better caretaker than a loving and attentive parent who needs the help of other caretakers. That ought to make us all feel ill on numerous levels.

I don’t know who would be a better parent to hold custody of little Aidan. Mothers are not automatically better parents than fathers, there seem to be no allegations of abuse on either side, and so apart from thinking that Trais is quite the bigot, I can’t make that judgment. But I do know that a judge would be appallingly wrong to make the decision based on O’Neill’s disability. I do know that saying a parent must be able to play sports in order to properly care for her child is ableist and absurd. I do know that a child is much more likely to grow up “feeling sorry” for his disabled parent if he is exposed to those attitudes which say that disability is a tragedy worthy of pity. And I do know that reproductive rights don’t end when a pregnancy is terminated or when a child is born, but that they need to extend to the right of women to parent their own kids, even when those women have an identity that is marginalized and devalued.

via FWD/Forward

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{ 6 comments }

1 Liz Henry December 23, 2009 at 4:39 pm

I feel really sad for Mr. Levine that his own children don’t know the joy of going fast down a ramp or a hill on their dad’s lap. Like my son does…

2 Wendy December 23, 2009 at 9:10 pm

Thank you for posting about this topic. As a physical therapist who has worked for 22 years empowering those with disabilities, I certainly hope that the judge in this case will recognize that a being in a wheelchair does not effect a person’s ability to love and care for another person. I hope you’ll give us an update on the case – and for those commenters that think the father is right, they need to get out in the world and actually have contact with persons with disability…I think it would open their eyes to a reality to which they are completely ignorant.

3 lauredhel December 24, 2009 at 12:37 am

Thanks for posting about this.

My following comments do not refer to this particular case.

A knock-on effect of this attitude to custody is that parents with disabilities have yet another disincentive to leave an abusive relationship. Already people are more likely to abuse people with disabilities, physically, sexually, and financially. There are substantial hurdles that people with disabilities face when leaving a relationship, above and beyond the usual hurdles: they are still at risk from their abusive partners when leaving, but they also may have physical difficulty actually leaving; may not be able to manage without their usual care, however bad/abusive; may not be able to access shelters and advice and counselling services; and so on and so on.

Now, to add to that, there is the fear that they will be excluded from custody purely on the basis of their disability.

4 Shayna December 24, 2009 at 1:06 am

This story is just horrifying.

I was reading, reading, reading along thinking “Oh, this is going too far. some disabled people really can’t take care of their kids,” and then I got to your point about how this is actually about telling women that they can’t depend on help, that they have to do it all themselves, and I was like Oh right, EXACTLY. We all depend on our societies for different things, and we need to navigate that individually, personally.

5 ColleenCuisine December 26, 2009 at 9:15 am

Thanks for writing about this, it’s valuable to read an astute analysis of the likely influences over the judicial system in these cases.

If you can, please keep us informed about this case.

6 Ellen Keim January 1, 2010 at 10:49 am

Would a judge or Social Service agency take the child out of the home if the parents were living together? No, because SHE WOULD HAVE SOMEONE TO HELP CARE FOR HIM.

Also, why does the child have to be deprived of experiences that she can’t provide? Isn’t the father going to be involved? (Either through visitation or joint custody?) Seems to me there are more ways to go than taking the child away from her.

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