Jun. 10, 2011 -- Citing the messy nature of the custody battle -- infidelity, restraining orders, allegations of domestic violence and jail time on the part of both spouses -- a District Court judge has denied a North Carolina woman's petition to keep her two children while she appeals an earlier ruling that gave primary custody to the children's father.
Alaina Giordano became famous this spring as the mother who was denied custody partly because of breast cancer, but the details surrounding the tumultuous separation and custody battle between Giordano and her once-husband and high school sweetheart Kane Snyder reached beyond her cancer prognosis.
In the April 25 ruling that determined that her two children must move from their home in Durham, N.C., to live primarily with their father in Chicago, Judge Nancy Gordon denied Giordano primary custody because she was unemployed, "the course of her disease is unknown" and "children who have a parent with cancer need more contact with the non-ill parent."
"It makes no sense to take them away from me because you don't know how long I'm going to live," Giordano, 37, told ABC News at the time. "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."
Gordon highlighted other concerns in the original ruling, however, such as mental health concerns and a tendency to involve the children in parental disputes, that called into question Giordano's suitability as a primary caregiver, regardless of her health. Court documents also detail the escalating nature of the conflict between Giordano and Snyder: allegations of domestic violence were made on both sides, a 2009 fight resulted in a night in jail for both spouses and in 2010 and each filed a restraining order against the other.
Following the ruling, Giordano filed an appeal against the ruling and requested a stay from the judge that would allow her children to remain in Durham with Giordano until the appeal has been processed. Gordon said Wednesday that she lacked the authority to grant the stay, which means the children will be moved to Chicago with their father as of next Friday.
For now, the original ruling stands that limits Giordano's custody of Bud, 5, and Sofia, 11, to holiday and weekend visitation at their father's home in Chicago, as long as she continues to live Durham, where her cancer treatment is based. Were she to move to Chicago, the parents would share custody equally.
Giordano said she hopes to appeal the court's ruling so that she and her children can stay in North Carolina. ABC News calls to her former husband were not returned.
Should Cancer Affect Child Custody?
Giordano has stage 4 breast cancer, or advanced with a poor prognosis. 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 said.
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," Dr. Gerry Koocher, professor of psychology at Simmons College in Boston, said.
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 not the only factor at play in the court's decision.
But the determination that it might 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.
'Cancer Is Not Leprosy'
In her ruling, 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."
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 this concept of "protecting" children from an ill parent is troubling for some.
[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 in Cambridge, Mass.
"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, per se, exclude them from custody," he added.