North Carolina Mom With Breast Cancer Loses Custody of Kids

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In accordance with the Uniform and Marriage and Divorce Act, it is not uncommon for family courts 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," Gerry Koocher, a professor of psychology at Simmons College in Boston, said.

And, as with many custody battles, Giordano and Snyder's case was complicated, given the restraining orders, mental health problems and allegations of cheating and domestic violence. Giordano's cancer was not the only factor at play in the court's decision.

But the determination that it might be in Sofia's and Bud's best interest to have limited contact with their mother because of her status as a cancer patient has upset some cancer and legal experts.

'Cancer Is Not Leprosy'

Holly Prigerson, director of psycho-oncology research, psychosocial oncology and palliative care at the Dana-Farber Cancer Institute in Boston, said, "Cancer is not leprosy. ... Young children want to be with their parents, even if ill. 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."

From a legal standpoint, making custody decisions based, even in part, on the concept of "protecting" children from an ill parent can be troubling.

[T]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," said Glenn Cohen, co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

"By contrast, it seems unusual to me," Cohen continued, "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, per se, exclude them from custody."

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