NEW JERSEY SUPREME COURT RULES MOTHER WITH TERMINAL BRAIN CANCER NOT UNFIT

COURT FINDS MOTHER WITH TERMINAL BREAST CANCER TO BE FIT PARENT

In a ruling published in November, from an opinion handed down in May, 2013, judge Lawrence R. Jones, of the Ocean County Superior Court, held that a primary custodial parent diagnosed with Stage IV (terminal and incurable) breast cancer should not lose custody because of her medical condition. The non-custodial parent had sought transfer based on her terminal diagnosis. In the case of A.W. vs. T.D., the parties had divorced in 2002 and had three children, all in their early teens. The parents share joint custody, but the mother, who lives about three hours from the father, has primary physical custody. After doctors concluded that the mother had metastatic Stage IV breast cancer, the father sought a change of custody. The mother acknowledged that custody would eventually transfer to the father, but asked the court not to transfer custody immediately, as she was stable, functional and had the ability to provide appropriate care for her children. She also noted that she had many family members who lived close by and could help, if necessary. The decision to transfer custody away from a custodial parent cannot, Judge Jones ruled, “fairly or properly rest solely upon an illness, disability, or bodily condition.” He further concluded that it would be “fundamentally inequitable and inappropriate” for the court to find that an illness or disability, even something as serious as terminal cancer, automatically made a parent unfit to provide primary physical custody. In New Jersey, as in other states, determinations of custody must give priority to the “best interests of the children.” The judge focused on the needs of the children, citing the importance of their relationship with their mother during the final stages of her life. He concluded that taking them away from their “dying mother and caretaker” could result in irreparable emotional harm.

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