Progress has been made in the area of parents with disabilities being awarded custody of their children. Several courts have ruled that a parent's disability, including epilepsy, cannot be the sole basis upon which custody is denied.
This trend is particularly encouraging for people with epilepsy since it is rare that a parent's epilepsy will warrant denial of custody. People with epilepsy are often far more handicapped by other people's attitudes toward them than by their epilepsy. Custody decisions involving a parent with epilepsy should, therefore, be made on an individualized basis. When courts determine custody of a child, it will look to the best interest of the child to determine arrangements. Thus, a parent’s epilepsy may be a factor in the determination of custody, but only so far as it directly affects the best interests of the child. Factors to consider in making this determination include the type of seizure, the degree of control, the frequency of seizures, whether there is a warning period (aura), whether the person is disoriented following a seizure and how long a recovery period is involved, if the seizures tend to occur at a particular time of day or if there appear to be certain precipitating causes, and how reliable the person is in taking prescribed anticonvulsant medication. Since these factors tend to combine in a unique way in each person it is important that generalized decisions not be made solely based on the fact that a person has epilepsy.
It is important to examine what effect, if any, a person's seizures may have on his or her ability to care for children. The treating neurologist, who has the most information about the type(s) of seizures, the degree of control, and the effect that the person's seizures may have on the ability to function and care for a child, would provide help in this regard. Detailed information on the person's seizures is also important because the issue of a parent harming a child during a seizure is often raised. While violent or hazardous
Family Law and Child Custody
behavior rarely occurs during a seizure, it will be important for the individual to be prepared to counter this argument.
Another issue that may be raised is the effect that observing a parent's seizure may have on a child.
There is not very much information available on this subject. Courts may assume harm based upon a misunderstanding and unfounded fear of epilepsy. There is no scientific or psychological evidence that the witnessing of a seizure is bad for a child. One article reports that children who are dealt with openly about their parent's condition and who have been prepared for the possibility of a seizure are able to deal with the event better than children from whom this information has been withheld. This article is found at
Lechtenberg, R. and Akner, L., "Psychologic Adaptation of Children to Epilepsy in a Parent," 25
Epilepsia 40 (l984).
It is also important to demonstrate how a parent with active seizures is able to care for a child, especially if the child is very young. For example, individuals with active seizures who must be alone with infants will often develop specialized childcare routines that do not place the child at risk; such as diapering a baby on the floor, or bathing a child with a washcloth instead of placing it in a tub filled with water.
Expert testimony on all of these issues is essential at a custody hearing, especially where it is anticipated that misinformation about epilepsy may be presented. Counsel for the parent with epilepsy should also be prepared to produce evidence about epilepsy itself in order to insure that the trier of fact understands basic facts about the condition and its manifestations.
You and/or your attorney may be interested in the following cases: In re Marriage of Carney, 24
Cal. 3d 725, 598 P.2d 472 (Cal. Sup. Ct. l979), the first major case to rule that a disability may not be the
Family Law and Child Custody
sole basis for denying custody; Moye v. Moye 627 P. 2d 799 (Idaho Sup Ct. l981), in which the Idaho
Supreme Court held that a trial court's overemphasis on the mother's epilepsy rendered its custody award to the father an abuse of discretion; In re W. O., 88 Cal. App.3d 906 (l979), in which a mother’s epilepsy was rejected as a basis upon which to remove children from her custody; and
In re Adoption of Richardson, 25l Cal. App.2d 222, 59 Cal. Rptr. 323 (l967), in which the denial of the right to adopt a child merely because of prospective parent's disability was found to be unconstitutional.
Other cases in which courts have discussed the effect of a parent's disability on a custody decision include: Hatz v. Hatz, 97 Ad. 2d 629, 468 N.Y.S. 2d 943 (A.D. 3 Dept. l983); Rains v. Alston, 576 S.W.
2d 505 (Ark. 1979); In re Marriage of Levin, 102 Cal. App. 3d 981 (l980); People in the Interest of B.W.,
626 P. 2d 742 (Colo App. l981); and Warnick v. Couey, 359 So. 2d 801 (Ala. Civ. App. l978). Law review articles which may be helpful are "The Epilepsies: Their Effect on the Biological Family, The
State-Decreed Family, and Civil Liability in California," l3 San Diego L. Rev. 978 (l976) (see in particular, pp. l002-l0ll); and M. Kirshbaum, “Parents with Disabilities: Problems in Family Court
Practice, 4 J. Center for Families, Child. & Cts. 27 (2003).
While this material is designed to provide accurate and current information on the subject matter involved, the Epilepsy Foundation and the authors cannot guarantee the accuracy or completeness of the information contained in this publication. This fact sheet is not a legal document and does not provide legal advice or opinion. If legal advice or other expert assistance is required, the services of a competent professional should be sought.