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Disabled South Carolina woman in tragic child custody dispute

The case of a South Carolina woman with a profound disability shows us just how difficult it could be to balance parental interests with the best interests of the children in child custody disputes after a life-changing event. 34-year-old Abbie D. and her ex-husband Dan have four-and-a-half year-old triplets. Unfortunately, a series of medical errors at the time of the children's birth resulted in Abbie's brain being starved of oxygen, leaving her largely paralyzed and in a "minimally conscious state."

No one knows whether Abbie can understand speech or even recognize her children. Her parents, who were named as her conservators after she became disabled, believe she is able to communicate by blinking her answers to yes-or-no questions. They believe their daughter has a constitutional right to visitation with her children.

Her ex-husband Dan believes she is incapable of communication or recognition, and he has largely denied visitation because he believes it is not in the children's best interests. Dan also claims that Abbie's parents are using her to pursue their own goal: grandparents' visitation rights for themselves.

The case, though tragic, could have implications for all parents with disabilities who are involved in child custody or visitation disputes.

Do all parents have a constitutional right to visitation with their children?

As a starting point, yes. Parents do have a constitutional right to raise their own children free of government interference, up to a point. The Constitution does allow states to pursue the termination of the parental rights of unfit parents, as long as the parent's unfitness is proven in court. Custodial parents also have the right to decide, absent a court order, whether to allow visitation between their children and other family members, such as grandparents.

In this case, there appears to be no question that Abbie could be given legal custody of her children; she is under a conservatorship. The question is whether she should have enforceable visitation rights even if her Dan opposes the visitation.

Dan's lawyer proposed that Abbie should be given a competency hearing, to find out if she could actually express her wish to visit with her children. Only then, the lawyer argues, would it make sense to litigate the visitation dispute. The judge in the case has denied that proposal.

Abbie's lawyer argues that Abbie should be given her visitation rights unless Dan can prove the visits are detrimental to the children -- a similar standard to that used to decide whether parents who are denied custody rights for other reasons will be granted visitation.

"Even prisoners have the right to see their children," Abbie's attorney argues. And "it is in the best interests of these children to have a relationship with their mother."

But can they? Dr. Angela N. Hays, a neurologist who examined Abbie, says it is impossible to know. "[I]t is clear that she can at least perceive images and sounds," Hays said. "I cannot exclude the possibility that she may retain the capacity to recognize family members and derive some enjoyment from social interaction."

Source: Los Angeles Times, "Disabled mother battling for visitation rights gets precious time with her kids," Maria L. La Ganga, January 24, 2011

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