Judge Cites Mom's Breast Cancer in Denying Custody of Children

May 10, 2011— -- 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," saysHolly 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.

[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," 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.