Losing Ground: Cancer Diagnosis a Custody Consideration?

Custody considerations Brotherly Love

My Darling Boys adore each other. Brother and Brother, as they call each other, have always loved each other. Even before Darling 2 was born, it was Darling 1's voice that made him stir and wriggle with excitement. As much as they love each other, they can also turn on each other quickly: Darling 1 hits Darling 2 for throwing a toy at him; but Darling 2 threw said toy because Darling 1 grabbed another toy from Darling 2; but Darling 1 took the toy because Darling 2 knocked over Darling 1's Lego Tower; but before that they were sitting there playing together as happy as could be.

Of course, that chain of events involves screeching and crying and one or both running to tell mama. I may or may not have seen the whole scene play out, and I get two very one-sided stories. Sometimes I don't know who to discipline and sometimes based on previous evidence I may not care to side with either of the complaining parties.

If I have seen only the last scene of this act, I may make the wrong choice based on a knee jerk reaction. It's never easy playing judge when it comes to our children, especially if it's a case involving our children against each other. All evidence must be reviewed and the outcome must be in their best interest.

Child Custody Considerations

Such is the case in every single child custody matter. In marriage, the parties start out adoring each other, but if a marriage becomes broken in a way that can't be fixed, the couple can quickly turn on each other, especially in matters involving children. When this happens, a judge must hear evidence, review it, apply the law and make a ruling based on the law and the evidence presented.

It's rarely easy for a judge to decide who should have primary custody. Most of the time, the judge has two parents before him or her who love their children and capably provide for them. Judges must consider many factors that will ultimately determine what is in the best interest of the children as best as the judge can tell.

A judge sometimes makes the wrong decision. A judge often rules in a way that is upsetting to one side, if not both sides, in a divorce proceeding. It's no easy task. Above all cases a trial court judge must rule upon it's the family issues that give them the longest pause. I've been there {as a law clerk} and watched judges weighing the evidence, trying to make the right decision for all parties.

A Shift in Custody

In April 2011, a Durham, NC, judge ordered the primary custody of two young children to shift to their father. This shift in custody requires the kids, one boy, age 6, and one girl, age 11, to move from Durham to the Chicago, IL, area, effective June 17, 2011. You have probably heard about this case in the last few weeks or months.

What makes this child custody case more newsworthy than the hundreds that are decided every day across this country? Well, the mother in this case has Stage 4 Breast Cancer. While the judge's Order outlines many of the issues considered in making this decision, the media's focus has been on the cancer issue.

Giordano & Snyder

The knee jerk reaction to reading the titles to the articles about this case is, how awful...how heartless...how discriminatory, etc. That's what I thought when I saw the headline, Mom Loses Custody of Children Due to Stage 4 Breast Cancer or something similarly inflammatory.

The story, no matter whose side you take, is heart-wrenching when you consider the children at the heart of this case. Alaina Giordano was diagnosed with breast cancer in 2007. In 2010, Giordano and her husband, Kane Snyder, separated. Since the two separated, Snyder accepted a job in the Chicago, IL, area and moved there. Giordano remains in Durham, NC, a single, stay-at-home mom, supported by Snyder.

The record is fraught with issues and finger pointing from both sides: after a fight, both parties spent a night in jail in 2009; both claim infidelity on the part of the other spouse; both have filed and dropped no contact orders based upon allegations of domestic violence; and neither is willing to move for various valid reasons.

The Order

The judge looked at all of these issues and more, including the fact that Giordano does have Stage 4 Breast Cancer, even though she is stable and the cancer is not progressing at this time, and decided that the father, Snyder, was the best choice for primary custody if Giordano won't move to the Chicago area. Snyder must consider his employment and insurance benefits that supports and covers all parties and is not able to move. Giordano says she needs to stay where her medical team and support system are located and can't move.

But can the judge consider the medical health of the parents in making this decision? Ultimately, the judge must decide what is in the best interest of the kids. This is, of course, subjective, and could be answered differently by different people. While the precise meanings and factors vary from state to state, the "best interests of a child" is determined by considering the mental and physical health, safety and welfare of a child, permanency issues, emotional ties and family relationships, domestic violence issues, mental and physical health of parents, parents' capacity to provide a safe home, food, clothing and other essentials, etc.

The judge did consider the impact Giordano's illness could have on the children, based on testimony from a child development expert, but the judge also looked at financial factors, anger management issues, relationship issues, issue involving the kids' general well-being, and other factors.

Giordano has vowed to appeal, but family law orders are not often disturbed by higher courts because the trial court judges receive evidence and testimony first-hand and use this first-hand knowledge to make these weighty decisions.

The Scoop

There has been an outpouring of support for Giordano in the wake of this decision. As a mother, my heart aches for any mother who must be separated from her children for any reason. As an attorney and former law clerk, I understand how the judge could have ruled in this way. The 27 page Order makes clear to me that the judge did not take this matter lightly.

The short of it is life isn't fair and not all ends well in love and war. The long of it is there's a mom who has metastasized cancer with a poor prognosis, but is doing well now, who is not only losing primary custody of her kids, but is having to ship them off to a new city almost 900 miles away.

Regardless of whether this Order is right or wrong, the issue of parental health, present and future, regarding custody issues, is a slippery slope question. I will be exploring this question and other custody considerations in the next several days. Over and out...

Anna

You might also like:

A Happy Home: Tips for Helping Your Kids Cope with Divorce

A Change in Circumstance: Modification of a Child Support Order

Keep the Home Fire Burning: Tips for a Happy and Fulfilling Marriage

Life's Little Moments: The Beginning of the End of a Marri

 

www.MotherlyLaw.com

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