Cancer and child custody

May 12, 2011
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Having cancer is a stressful and scary process. Imagine adding a divorce and custody battle to the mix. Now imagine that the diagnosis you had no control over played a part in you losing custody of your children.

It happened to a North Carolina woman. Alaina Giordano and her husband are involved in a custody battle and Judge Nancy Gordon cited Giordano’s stage IV breast cancer diagnosis as one of the reasons the children should live with their father in Chicago.

Stage IV means the cancer has spread to another organ or organs, and is considered terminal for some cancers. Giordano acknowledged that in a TV interview Wednesday morning. However, she is receiving treatment and she says she is able to take care of her children. Giordano and her doctors don’t know how long she has to live, but at this point she doesn’t appear to be near the end of her life.

In granting primary custody to the father, the judge suggested that since Giordano is unemployed, perhaps she could move to Chicago to be closer to the children. Giordano doesn’t want to leave North Carolina because she is receiving treatment from doctors in Durham. The judge also said that “children who have a parent with cancer need more contact with the non–ill parent.” Giordano says she doesn’t have the money to be able to fly to Chicago and see her children as often as she would like. She hopes to appeal the ruling.

A family law attorney quoted in the story said he never had heard of a mother losing custody of her children because of poor health or being sick, and that the court has expanded the traditional understanding of what unfitness is.

Without having access to the order, I can only go on what has been reported. I’d imagine (or at least I hope) that there are other reasons as to why the judge felt Giordano should not have primary custody. But just the thought that her cancer diagnosis – when she is fully functional and she says the cancer is stable at the moment – had a part in her losing custody bothers me.

Why? Because I had cancer last year and it changes everything in your life. One minute think you’re healthy and feel fine, the next minute you’re hooked up to an IV getting drugs that not only hopefully will save your life, but make you feel like crap. I couldn’t imagine my cancer diagnosis being held against me for anything, especially taking away my children if I had any.   

I am thankfully in remission right now, but there’s always a possibility the cancer could return. If I were involved in a custody battle, would the judge cite that as a reason to grant custody to the father? Would the possibility of my cancer coming back deem me unfit?

Where does it end? Would a parent with diabetes or multiple sclerosis be considered unfit? Citing the “unknown” course of Giordano’s disease as a reason to have the children live with their father also is surprising. None of us know when we could die. Sure, a stage IV cancer diagnosis may give you some idea, but a parent could be involved in a fatal traffic accident or have a heart attack and die.

Have you heard of any similar rulings in Indiana? What are your thoughts on the case?


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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.