Most custody agreements consist of one primary custodian, with the non-custodial parent having a set number of visitation days/ hours per week.  Deciding which party gets primary custody is rarely a matter of who is the “better” parent, but rather an issue of which household offers a more stable environment for the child.  While this sounds like a personal judgment against one parent, it makes sense, for example, to give primary custody to the parent who works less hours and thus, took on more of the child care responsibilities.  It's also important to note that parenting plans can be amended based on compelling circumstances in either of the parents or child's life.

One such circumstance may be a drastic decline in one parent's health due to a terminal illness.  The main concern in these cases is whether or not a terminally ill individual is fit to be a parent.  This issue was at the heart of A.W v. T.D., which was heard by the superior court of Ocean County in 2013.  The case involved former spouses who shared joint legal custody of their 3 children, with the mother (defendant) having primary custody.  At the age of 46, the defendant was diagnosed with Stage IV cancer, prompting the plaintiff to file an application for emergency transfer of residential custody.  

The defendant objected, stating that while she acknowledged a transfer may be necessary in the future, she was not yet at a point where she was unable to care for the children.  Furthermore, she had an extensive network of nearby relatives, who had been, and would continue to assist her with the children.  The judge agreed, based on testimony from the defendant's doctors, that the mother's condition was currently stable enough for her to continue as the primary custodian.  In addition, the judge believed that the children would suffer from “immediate and irreparable harm” should they be removed from their mother at this very sensitive time in their lives.  The judge agreed that such measures will most likely be necessary as the mother's condition worsens, but they should “spend as much time with her as reasonably possible under the circumstances.”

The takeaway from this case is the portion of the ruling, which reads, “The harm at issue is not physical harm, but emotional harm resulting from a forcible, premature separation…”  While the plaintiff argued that his ex's deteriorating condition put the children at risk, the judge believed that the children were at greater risk for harm by being prematurely deprived of their primary caretaker.  He also acknowledged the very real and damaging effects of emotional trauma.

Resolving custody issues due to a terminal illness is an incredibly complex and sensitive issue.  While there's no easy answer to this tragic dilemma, it is imperative to find out about your legal options from an experienced family law attorney.  For more information on your custodial rights, please speak with the family law attorneys of Villani & DeLuca, P.C.