In 2009 Kaney O’Neill, a veteran and quadriplegic mother, faced an unexpected battle when her former boyfriend filed for custody of their ten-week-old son, alleging that O’Neill was “not a fit and proper person” to care for their son and that her disability “greatly limits her ability to care for the minor, or even wake up if the minor is distressed” (Chicago Tribune, December 20, 2009, tinyurl.com/l6jqkss). Refuting this allegation, O’Neill demonstrated her ability to care for their son. Indeed, she had prepared for motherhood by working with an occupational therapy program for expectant mothers and parents, adapting her house for parenting, securing adapted baby care equipment, and using personal assistants to help her as needed (The Legal Program, November 23, 2011, tinyurl.com/lzd5wxr). Illustrating the bias that pervades the family law system, an attorney who was not affiliated with the case remarked, “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?” This attorney, who has specialized in divorce and custody cases for more than 40 years, said that O’Neill “would likely not be able to teach her son to write, paint, or play ball.” The attorney asked a news reporter, “What’s the effect on the child—feeling sorry for the mother and becoming the parent?”
O’Neill’s battle endured for a year and a half before both parties came to an agreement that gives the father visitation rights (ABC 7 Chicago, May 4, 2011, tinyurl.com/qhua84l). Although she was elated with the outcome, O’Neill told reporters that she was “disappointed that the courts allow for someone to question your ability to have custody based on your disability.”
Similarly, in 2010 a Missouri couple had their two-day-old daughter taken into custody by the state because both parents were blind (NBC Action News, July 21, 2010, tinyurl.com/ovc4o4h). This removal was not based on allegations of abuse, just a fear that the parents would be unable to care for their daughter. Because the couple was presumed unfit, for nearly two months they were permitted to visit their daughter only two to three times a week, for just an hour at a time, with a foster parent monitoring.
The fundamental right to parent without interference is protected by the U.S. Constitution and balanced by the judicially recognized power of the state to interfere to protect the well-being of its children. Factors used in both dependency court and family court proceedings to determine whether children need to become wards of the state and to determine which parent is the more competent custodian may be reasonable. Nonetheless, these rules have not been objectively or justly applied to parents with disabilities.