Aug. 16, 2011 -- Alaina Giordano, the North Carolina mother with stage 4 breast cancer who captured the hearts of thousands this spring with her grueling fight for the custody of her children, has lost the battle, and most likely the war. Her two children are moving to Chicago to live with their father while she continues her cancer treatment in Durham
Although an April 25 ruling already determined that the children's father, Kane Snyder, would have primary custody of the children, Giordano has fought the ruling all summer, arguing that the judge used Giordano's cancer status to deny her custody. Up till now, she had managed to delay the move of Bud, 6, and Sofia, 11, while her appeal wended its way through the courts. .
The North Carolina State Supreme Court denied her request for a stay on the ruling last week, however, which means her children will make the move to Chicago before the school year starts. The move could weaken Giordano's chances of winning an appeal of the April 25 ruling, because the court may not want to uproot the children again after they make the move to Chicago.
In a statement issued Friday, Giordano addressed the hundreds of thousands of followers on Facebook who have supported her cause and even donated money toward her legal battle:
"As I write today, I deal with the difficult recognition that my children will have to live 800 miles away from me until my appeal can be heard. In the wake of this legal decision, my children and I now must grieve the pending loss of each other."
Giordano wrote that she would travel to visit her children in Chicago regularly, and that she wanted to fight not only for appeal of the custody ruling but also for laws to "eliminate medical bias as a deciding factor in custody cases."
The custody battle fought this spring became messy for a number of reasons -- infidelity, restraining orders, allegations of domestic abuse and jail time on the part of both spouses -- giving Durham District Court Judge Nancy Gordon plenty to consider. But it is how Gordon used Giordano's cancer diagnosis that has raised hackles among the 37-year-old mother and her followers, however.
In her ruling, Gordon stated that she 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." Gordon cited forensic psychologist 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."
The April ruling, which currently stands, limits Giordano's custody of Bud and Sofia to holiday and weekend visits at their father's home in Chicago, as long as she continues to live Durham, where she is enrolled in a clinical trial for an experimental treatment. Her condition remains stable.
Should Cancer Affect Child Custody?
Up until the children's move this month, Giordano had been the children's primary caregiver, working from home as a babysitter and freelance writer.
"It makes no sense to take them away from me because you don't know how long I'm going to live," Giordano told ABC News at the time of the ruling. "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."
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."