Womens Health

OK to Deny Custody Because of Mom's Terminal Cancer?

| by Mark Berman Opposing Views

A judge in North Carolina has ruled against a woman seeking primary custody of her two children because she is suffering from terminal breast cancer. The children must now move to Chicago to live with their father.

ABC News reports that in ruling against Alaina Giordano last month, Judge Nancy Gordon cited a forensic psychologist, saying "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."

Giordano has stage 4 breast cancer. It has metastasized to her bones and she receives monthly treatment. But her medical records list the cancer as stable and not progressing.

"It makes no sense to take them away from me because you don't know how long I'm going to live," Giordano said, adding that she is fully functional. "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."

The Uniform and Marriage and Divorce Act allows judges to take health -- both physical and mental -- into account when making custody decisions.

While it appears the judge correctly applied the law, it is troubling to some legal analysts.

"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 the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard University.

Giordano is appealing the ruling. If that fails, the children, 11-year-old Sofia and Bud, 5, will have to move by June 17.

Giordano will share custody, but she would have to fly to Chicago to see the kids on weekends and on holidays, and she said she just can't afford it.

Her unemployment was also cited as a reason for the judge's decision.