Disabled Mother Fighting for Visitation Rights

by Robin Sax

“This is disturbing and sad on so many levels,” says Nicole Leibovitz Klauzar on my Facebook page. I whole-heartedly agree.

For those of you who missed this touching piece in the Los Angeles Times on Monday, January 24, titled “A Precious, Secret Meeting,” I will give you the summary. Abbie Dorn, 34-years-old, is confined to a wheelchair after suffering sever brain damage following a grave medical malpractice incident when she gave birth to triplets about three years ago. Abbie has not held her children since the day they were born because her now ex-husband is battling to prevent her visitation with her parents and custodians, Paul and Susan Cohen. Finally, just last month, Abbie’s children were allowed to spend a few precious hours with her.

As I read this article, I felt awful that a case like this is even tangled up in our justice system. I am all about fighting and duking it out in court when necessary, of course. I earn a living at it. But, does this father really have to fight this mother and her family so hard? Why shouldn't the kids meet their mom and get to know their mother’s family and their grandparents? One tragedy, their mother’s brain damage, doesn’t have to mean another tragedy, the alienation of the kids from the mom and their own relatives. It is outrageous. I mean, what or who, exactly, are you protecting the kids from?

Vicki J. Greene, who represents Dan Dorn (the ex husband), has argued in documents and in court that “the constitutional right to visit with one’s children is reserved for fit parents only.” According to Greene, Abbie “is incapable of communication (blinking is merely reflexive) and more likely than not, would not know or acknowledge her children if they were standing before her.”

In response, Lisa Helfend Meyer, Abbie’s attorney, puts it succinctly: “Even prisoners have the right to see their children.” Arguably it is in the best interests of these children to have a relationship with their mother. But even more so, the mother has a right to visit with her children.

According to an analysis by Solomon Park who wrote Involvement in the Child Welfare System Among Mothers with Serious Mental Illness, the Americans with Disabilities Act (ADA) does not yet provide adequate protection for parents threatened with this kind of custody loss.

The ADA does establish something called community integration as a right for people with psychiatric disabilities, though. The number of parents living with a mental illness in the United States is estimated to be in the millions. These parents are at a much greater risk of losing their children, and they need additional review and protection. Research has shown that mothers with a serious mental illness were almost three times more likely, when involved in the child welfare system, to have lost custody of their children. In light of this, the father never should have brought the fight to the system. He should have put the kids first and worked out an arrangement with the family.

It has been proved that being in the parental role, however limited, still remains extremely important to individuals with severe mental disability. It has been identified as a strong motivating factor for treatment and better recoveries based on research conducted by the UPENN Collaborative on Community Integration, based out of the University of Pennsylvania.

Some commentary from the LATimes website is worth sharing. In response to the father’s actions: Without question this father is violating Jewish law by fighting this out in court. Jewish law demands that the children and their mother have a relationship. His behavior is a major source of embarrassment to the Orthodox Jewish community. Lets all pray that Abbie has a full recovery (G-d should make a miracle!) and that she raises her 3 children in a loving environment away from this vengeful father!

In response to the mother’s actual mental condition: One neurologist suggests that this woman can see images and can remember family members. Her speech therapist is making weekly progress and Abbie can respond by blinking to Yes and No questions. Shouldn’t that be enough to warrant visitation rights? If there is even a sliver of a chance that this woman can see and recognize the fact that these are her children, what is the harm of her having some sort of visitation? Let’s say some of the doctors on the “other side” are right and she is completely brain dead – still, what is the harm of visitation? This just could be more beneficial for the children to see their mother, to know that the reason she isn’t and hasn’t been there for them is that she is ill.

Here is an opportunity for the father and the families to blend and create a unique magnificent family environment for the kids. The father has moved on from the marriage, but why wouldn’t he want his triplets to see their mother and extended maternal family? What is disturbing on so many levels is that this case has been tangled our justice system for the three years. 

 

 The picture you see of an imaginary healthy Abbie (above) standing with her three children was not posted in the online version of this LA Times story, but it did appear in the printed. Abbie’s mother had this painting made. As I look at this composite of what Abbie “should have been” (a mother raising her triplets in a home with love), I can’t help but muse on the fragility of life and how easily it can all be taken away by chance. It also makes me even angrier at this unfeeling father who is doing a further, almost crueler, injustice to his children by pursuing all this needless and expensive litigation to prevent them from seeing their mom.

Why hasn’t a judge come in and put a stop to this nonsense? As a mother and an advocate on behalf of children it is a no brainer that the longer the time away from a family in the formidable years the worse it is for the children. Critical family bonding time has already been lost.

I guess the thing that is so troubling from a legal point of view is that this is a classic maneuver of how the justice system simply mucks up what should be very clear. I think most people universally agree, as well as all the literature suggests, that kids thrive the most when they have some relationship with their parents, and that bonding begins from the first moments of life and continues throughout development.

All kids do better knowing their parents and having a relationship with them. As a matter of fact, it is even the goal of the Dependency Courts who decide parental rights, to engage in parental reunification even in cases where abuse has been found because some familial relationship is better than none. So if the goal of the court system is to weigh the children’s best interest, and relationships with both parent are encouraged, how is it that we are even hearing about a case like this? Simply put, if you have the cash to reek havoc, some people just will. And if reeking havoc can be done under the guise of a lawsuit, then there is a better chance that the shake down will achieve the desired result—that the other side will retreat or give up.

To me, as a lawyer who has spent many years in the courtroom, there are cases that clearly need legal involvement and others that do not. Cases with unique legal issues or egregious abuse or completely unfair treatment are all examples. But, this is a simple case. There is no big custody dispute. This is a mom who merely wants to see her three kids. That’s it. See them. Let them know she is alive and be able to spend some time with them. This is not about over nights, moving, or anything but mere face to face visit time. A fight for what would be a few hours a week of time with their mom? Give me a break.

Unfortunately, so often there are people who misuse the justice system to facilitate their own selfish requests, to waste time, and to cost other people money. You know what I am talking about, we see it all the time. People bring expensive lawsuits to force people to settle, drag people to court to wear them down and air dirty laundry just for some legal advantage. I can see why it happens in divorce cases and custody cases where big dollars are at stake or there is a scorned spouse on the not so good side of an affair. But, why here?

For purposes of full disclosure, I have not read the documents in this case, but to the discerning eye on the surface there seems to be no legitimate reason for the father to mount this battle in this case. So why is he? Just to get back at his in-laws? For money reasons? Although that doesn’t make much sense. To me there seems to be only three possible reasons:

1. He is a completely narcissistic individual that has no concept of parenting and is so hateful that he would want to keep his children from knowing their mom, or

2. The guy is so naive and so misguided that he is just making idiotic choices, and/or

3. There is some financial or business interest (that has not been made public yet) that is forcing him to misuse the kids and the system for another purpose.

If it’s not one of these, I challenge you, Dan Dorn, to explain yourself, because I, and my Facebook friends and a few more thousand around the country want answers!

In California, as in most states, courts look at the best interest of the child when making decisions of custody and visitation. Here the dad has an unfettered opportunity to act in their best interest. He could use this as a chance to teach his three young children how to be tolerant, loving, accepting of disability, and unified even with a broken family. The three kids should and will know that they have a mom, and if they can establish a relationship at any time it will be better for them. They should know their history and their mother’s history, and be actively involved in all their parents and grandparents life. 

Why would dad want to prevent that? He has remarried, presumably happily, and has gone on with his life. He is not even being weighed down with the notion of sickness and health, and has bailed on his ex-wife Abbie anyway. He has a new wife and a potential new family in his future. If I were counseling Dan, I would say he is missing an opportunity and clogging our system with a case that does not belong. Dan has an opportunity to be father of the year by teaching his children about how to deal with disabilities, and by allowing for critical mother/child bonding that will effect these kids throughout their whole life.

The kids have missed out on so much already. Isn’t it time to do the right thing? Besides the obvious, that kids need their mother, isn’t it time we teach our children to be loving and accepting the disabled as well? Since we know we cannot rely on individuals to do what needs to be done, I can only hope that the court system puts a swift end to the needless litigation that is not only baseless but time consuming and costly as well.