A 24-year-old mother who is seeking a divorce cannot keep custody of her two children because she is an epilptic, a district court judge in the farming community of Weiser, Idaho, has ruled.
The unusual decision which came early this month, has resulted in a storm of protest from epilepsy groups and from individuals as far away as Canada who have called to offer the mother, Lynnae Moye, sympathy, legal counsel and funds.
The ruling was made by 3rd District Court Jodge Gilbert Norries, who said Mrs. Moye's husband Terry should have custody of their children, Tanya, 2, and Bret, 4 months, in the impending divorce.
The Idaho supreme court, for the moment, has delayed enforcing Norris' order and Mrs. Moye is waiting for a decision from the court, perhaps this week, on whether she can retain custody of the children until it decides her appeal. That proceeding could last months, or years.
Accordin to Dr. Michael O'Brien, a Boise neurologist, Mrs. Moye has, "nocturnal grand mal" seizures, which occur only in her sleep when she is under severe emotional stress. Mrs. Moye told Norris she has not suffered any seizures since she and her husband were separated in October.
In this ruling, Norris said Mrs. Moye cannot act "decisively" for at least 10 minutes after a seizure. He cited testimony that she apparently lacked "energy to properly look after said children" for a day after a seizure.
A judge ruled it was it the best interest, welfare and safety for the children that Terry Moye, a mapmaker with the U.S. Geological Survey in Bend, Ore., should have custody.
Moye, in Boise to pick up his children, said, "A father should have an equal right to children." He insisted he can take better care of the children than his wife who, he complained, neglects the children's health at times.
He said his wife's epilepsy should be a fector in deciding custody. "During one 3 a.m. seizure she moved around screaming and rambling," Moye said. "It culd scare a little 2-year-old child."
Norris said in his Jan. 5 ruling that "each of the parties loved said children," but Mrs. Moye "could have the ability to properly look after and care for said children were it not for her seizures."
Jack McAllister, executive director of the Epilepsy Foundation of America in Washington, D.C., said Monday the organization's legal advocacy subcommittee "is looking at the Idaho judge's order. We may have a strong case here in which we could offer legal assistance to Mrs. Moye.
"It does appear at this point that she is being discriminated against simply and solely because of her epilepsy," McAllister said.
"This is tragic because it is typical of the discrimination we find still exists in many sections of society. But this case may be unique in our experience."
David Nehring, director of the Idaho Epilepsy Leaque, said there is a stigma attached to epilepsy "like there is with leprosy."