Family Matters

Should a Mother Lose Custody of Her Kids Because She Has Cancer?

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Alaina Giordano was already engaged in a battle royale, fighting Stage 4 breast cancer, when her struggle intensified recently: a judge ruled that the N.C. woman must give up custody of her two children to her husband, who lives in Chicago, in part because “children who have a parent with cancer need more contact with the non-ill parent.”

Judge Nancy Gordon ordered Giordano’s children, Sofia, 11, and Bud, 5, to relocate by June 17 from Durham, N.C., to Chicago to live with their father even though Giordano, who says she is strong and able to parent, reports her metastatic cancer is under control.

“In her ruling, Judge Nancy Gordon cited forensic psychologist Dr. Helen Brantley,” according to Good Morning America: “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 was diagnosed in Dec. 2007. On her blog, she said she has spent the past 16 months “defending myself from the attacks of my abusive husband who filed a lawsuit against me in Durham County, N.C., asking for full, permanent custody of our two children using the argument that I have a cancer diagnosis.” In August, Giordano says her husband, Kane Snyder, moved to the Chicago area for work, leaving the kids with her.

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For sure, Giordano’s breast cancer is but one aspect of what has proved to be a textbook messy divorce, replete with charges of abuse, cheating and mental illness. But it’s the role that terminal illness has played that has rallied irate mothers and more than a few experts to Giordano’s side, while simultaneously shining a spotlight on the tug-of-war that is child custody.

“It’s a bad precedent,” says Art Caplan, director of the Center for Bioethics at the University of Pennsylvania. “We certainly wouldn’t want to have legislation suggesting that parenting is going to be contingent on being in peak health. It’s not a big jump from, ‘I don’t want Mom to have custody because she has stage 4 cancer’ to ‘I don’t want Mom to have custody because she’s a smoker.'”

In Florida, points out family law attorney Hal Roen, there is a statute that prohibits a diagnosis of HIV from being used as a determining factor in custody battles. HIV is not cancer, of course, but the idea is the same: serious illness should not be held against parents if they are capable of taking care of their children. “The court has said this parent’s medical affliction overrides all the other good reasons why children would want to be with their mother,” says Roen. “If you take away that factor, would the court have removed the children from the mom and given them to the dad?”

Custody agreements, in theory, are based on what’s in a child’s best interest, but moving the children away from their friends, their schools and their mother at a time when her life expectancy is uncertain is “incomprehensible,” says Deedra Hunter, an Orlando mental health counselor who coaches women in custody battles and wrote Winning Custody: A Woman’s Guide to Retaining Custody of Her Children, based on her own divorce experience. In another much-publicized marriage that unraveled right down the road from Giordano’s home, no one suggested that Elizabeth Edwards cede primary custody of her two young children to her ex, John Edwards. Or perhaps after all the turmoil he caused her, John Edwards simply didn’t have the gall to float such a proposal.

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“Fathers absolutely do have rights, but the ones who would take children away from a dying mother…where is the compassion, where is the thought of the children?” says Hunter. “The kids would go through the terror and fear of their mother dying and then have to adjust to whole new surroundings. Later on, aren’t the children going to be angry at this man?”

In any case, is it really even possible to shield children from loss? “Your first instinct is to protect the kids,” says Caplan. “But clearly children have to bear all kinds of challenging and terrible events. What’s worse: moving them away from the mom when she’s dying or letting them stay as long as possible? It’s pretty clear what the answer is.”

Giordano wants to appeal, but in the meantime, she has publicized her story via the Web, where women — presumably mothers, mostly — have expressed their outrage at what they see as the judge’s insensitivity. An Iowa woman who says she doesn’t know Giordano began an online petition this week to “throw N.C. Judge Nancy Gordon off the bench;” Giordano’s sister has collected more than 8,000 signatures for another petition.

On a Facebook page called “Alaina Giordano Should Not Lose Her Kids Because She Has Breast Cancer,” more than 11,000 fans have joined forces to vilify Gordon online. “What kind of monster is that Judge???” asks Carol Dowling-Beckner. Adds Merwyn Haskett: “The judge is a woman…which makes it even more infuriating.”

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Sonya Joseph wrote on Giordano’s page that her mother died of breast cancer when she was 8: “In an effort to protect me, my father and aunts chose to not tell me that she was dying. Her hospital visits were masked by the line, Mommy’s at work. She was a nurse so odd hours at the hospital were normal to me. I went off to school one morning and then came home to a world that was never the same. Don’t rob these children of their mother’s last days. They may not be easy days but they are the only days they will have.”