Should Cancer Affect Child Custody?

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GloriaInTX's picture
Joined: 07/29/08
Posts: 4116
Should Cancer Affect Child Custody?

Should the fact that she has cancer be used against this mother for custody?

In a bitter child custody battle, Alaina Giordano's terminal breast cancer has been a strike against her in court. A North Carolina judge denied Giordano primary custody of her two children in part because "the course of her disease is unknown" and "children who have a parent with cancer need more contact with the non-ill parent."

Giordano's unemployment was also cited as a factor in the April 25th District Court ruling that her two children must move from their home in Durham, N.C., to live primarily with their father, Kane Snyder in Chicago as of June 17.

"It makes no sense to take them away from me because you don't know how long I'm going to live," Giordano says. "Everybody dies and none of us knows when. Some of us have a diagnosis of cancer, or diabetes, or asthma. This is a particularly dangerous ruling to base a custody case on a diagnosis."

Giordano and Snyder will share custody of Bud, 5, and Sofia, 11, but if Giordano continues to live in Durham, where she is treated by a team of doctors at Duke Cancer Institute, her custody will be limited to holiday and weekend visitation, the airfare for which, she says she cannot afford.

Giordano has stage 4 breast cancer. Though it has metastasized to her bones, she receives monthly treatment and her medical records list her cancer as stable and not progressing. "I'm fully functional and my kids are thriving here in Durham," she says.

Should Cancer Affect Child Custody?

In accordance with the Uniform and Marriage and Divorce Act, it is not uncommon for family court to take into account the health, both physical and mental, of a parent in making custody decisions.

"Substantial case law and psychological research consistently indicate that the physical and mental health of the parent constitute an important factor in considering custody of children following divorce," says Dr. Gerry Koocher, professor of psychology at Simmons College in Boston.

And as with most custody battles, Giordano and Snyder's case is a complicated one, complete with restraining orders, mental health concerns, and allegations of cheating and domestic violence. Giordano's cancer was certainly not the only factor at play in the court's decision.

However, the determination that it may be in Sofia and Bud's best interest to have limited contact with their mother merely because she is ill has some cancer and legal experts concerned.

In her ruling, Judge Nancy Gordon cited forensic psychologist Dr. Helen Brantley: "The more contact [the children] have with the non-ill parent, the better they do. They divide their world into the cancer world and a free of cancer world. Children want a normal childhood, and it is not normal with an ill parent."

"Cancer is not leprosy...young children want to be with their parents, even if ill," says Holly Prigerson, director of Center for Psycho-oncology & Palliative Care Research, Dana-Farber Cancer Institute. "That's not to say that seeing a parent so ill will not be upsetting for children -- it will be frightening -- but not seeing a mother and not receiving honest answers about why mommy is not there may be more detrimental to the child's mental health and functioning than the reverse," she adds.

From a legal standpoint, making custody decisions based, even in part, on this concept of "protecting" children from an ill parent is troubling for some.

he fact that a parent is seriously impaired or likely to die in the imminent future is the kind of thing a judge could legitimately take into account in the analysis," says Glenn Cohen, co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard University.

"By contrast, it seems unusual to me and I would worry that it is potentially discriminatory for a court to say that the mere fact that an otherwise healthy parent at no imminent risk of death or serious impairment has been diagnosed with cancer should be per se exclude them from custody," he adds.

Giordano hopes to appeal the court's ruling so that she and her children can stay in North Carolina. Calls made to Kane Snyder and Judge Nancy Gordon were not returned.

Spacers's picture
Joined: 12/29/03
Posts: 4103

Bad bad bad decision. Sad What those kids need most right now is more time with their mom, not to be moved hundreds of miles away. I wonder if that psychologist's POV wa taken out of context? I can see how in an intact family or a well-shared custody situation that might be the case, but to remov the kids entirely? Not good.

Joined: 01/01/06
Posts: 262

I think cancer does play a role in a decision like that...but honestly it would push me the opposite direction---toward letting the kids have more time with their mother.

The mom said the cancer isn't progressing right now and she is capable of doing everything. So why deprive the kids? My mom had either stage 3 or 4 breast cancer (in her lymph nodes and everything) but is currently in remission. Yes, not quite the same, but it made me realize that when she wasn't under treatment she was the same old energetic mom. You'd never know.

I pray I'm never in such a situation, but if my spouse and I were in a child custody dispute and he was dying of cancer, I would try to let my kids get as much time with him as possible. Keeping them away is like stealing future memories from them and I think would come back to bite me in the end.

ClairesMommy's picture
Joined: 08/15/06
Posts: 2299

"The more contact [the children] have with the non-ill parent, the better they do. They divide their world into the cancer world and a free of cancer world. Children want a normal childhood, and it is not normal with an ill parent."

This statement outrages and saddens me. I'm at a loss for words. Tragic from the children's perspective to not have their mom around, tragic from the mom's perspective because she can't be with her children as much as possible before she dies. So unbelieveably sad.:(

Joined: 06/04/07
Posts: 1368

I hope she wins her appeal. This decision is absolutely wrong. I would imagine the children would be even more stress living with dad while knowing mom is fighting for her life and them worrying about her and the unknown without physically seeing her themselves. And then to take away the only stability and consistency they have of school and their friends in the mix. I can't see how it's in the children's best interest at this time to live so far away from their sick parent when she had primary custody this entire time.