When it comes to child custody, it’s not uncommon to read or hear about primary physical custody being denied for such reasons as a parent’s long working hours or simple logistical concerns (i.e., the location of the children’s school). However, what about more complex and far less certain reasons such as a parent’s debilitating and potentially deadly medical condition?
This is exactly the situation in North Carolina, where last month a district court judge denied primary custody to a woman who is currently suffering from stage four breast cancer.
According to the order, Alaina G. was denied 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.”
Consequently, her two children must now move to Chicago by June 17 to live primarily with their father.
“It makes no sense to take them away from me because you don’t know how long I’m going to live,” she said. “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.”
Currently, Alaina G.’s stage four breast cancer has metastasized to her bones. However, she receives monthly treatment from her physicians in Durham, North Carolina, who have described her illness as both stable and not spreading.
“I’m fully functional and my kids are thriving here in Durham,” she said.
Interestingly, even though the children were ordered to move to Chicago to live with their father, Alaina G. and her former partner will still share custody. However, unless she eventually leaves Durham, she could be limited only to visitation time on the weekends and holidays, something she can ill afford due to her limited resources and weakened physical state.
In general, family courts can consider the physical and/or mental health of parents when making custody determinations. However, legal experts find Alaina G.’s case worrisome since it seemed to determine that limited contact with a sick but otherwise functioning parent was in the best interests of the children.
“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,” said Glenn Cohen, co-director of Harvard’s Center for Health Law Policy, Biotechnology, and Bioethics.
Family experts have expressed the same concerns over the outcome of the case.
“Cancer is not leprosy … young children want to be with their parents, even if ill,” said Holly Prigerson, director of Center for Psycho-oncology & Palliative Care Research at the 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.”
It now appears as if Alaina G. may appeal the family court judge’s decision.
Stay tuned for updates from our Ft. Worth family law blog …
To learn more about child custody or visitation, contact an experienced and skilled legal professional.
This post is for informational purposes only and is not to be construed as legal advice. Names have been withheld to protect the identity of the parties involved.