To what extent can a parent’s illness can have a bearing on a pending custody decision or existing custody arrangement.  Oftentimes, the illness is of a mental nature, where one parent will argue that the other parent is unfit to care for the children because of that parent’s history of mental illness, psychological/psychiatric treatment and/or use of prescription medications to treat such an illness (or lack thereof, which also often comes into the equation), and more.  What happens, however, when the illness is physical in nature?


For instance, what if one parent is diagnosed with cancer?  That was the issue presented in the newly published trial court decision, A.W. v. T.D., from Judge Jones in the Ocean County Family Part (the author of many published decisions in his tenure on the bench).  The most important question that the court will face in addressing the issue is whether – under the specific facts and circumstances at issue – the diagnosed parent can still appropriately care for the the child’s health, safety and welfare.  In other words, are the best interests of the child still protected by the existing arrangement?  If not, then a change may be necessary, through no fault of the ill parent.

In A.W., the parties shared joint legal custody of the three children, and mom served as the primray residential custodian and caretaker.  The parties lived more than three hours away from each other, although mom had a substantial support network of relatives residing within minutes of her home.  Mom, at age 46, was diagnosed with Stage IV breast cancer, for which she was hospitalized and then discharged.

Dad immediately filed an emergency application for a transfer of custody based on mom’s illness, arguing that the change was necessary to protect the children from irreparable harm.  Mom reasonably acknowledged in opposing dad’s motion that her condition could deteroriate in the future to the point that she could no longer care for the children, and that a transfer may be necessary at some point – just not yet, and that her nearby relatives could assist her in caring for the children (physically, emotionally, and financially).  Mom’s two treating doctors confirmed that the cancer was incurable and terminal, but that she was “presently stable and fully functional,” her judgment was not impaired by her taking of prescribed medication, and she could continue caring for the children.

The court not only found that mom was able to continue as primary custodian but that, in fact, the children could suffer “immediate and irreparable” harm should the transfer occur – indeed, the exact opposite of what dad was trying to prove:  “The harm at issue is not physical harm, but emotional harm resulting from a forcible, premature separation of the children from their dying mother and primary caretaker.”  The court added:

In this case, the parties’ cihldren may have a tremendous emotional need to remain with defendant, and to spend as much time with her as reasonably possible under the circumstances.  For the children, the loss of this opportunity during what may be the final stages of defendant’s life may be irreplaceable, and the resulting emotional damage irreparable.  The fact that the parties are divorced, and live relatively far apart, only further complicates matters for the children.

The court then really took dad to task for his application while providing some guidance, noting:

When a non-custodial parent files an application alleging a necessity to immediately transfer custody away from parent with a terminal illness, such application must at the very least logically acknowledge and address the critical questions of whether such immediate transfer of custody may cause the children serious and irreparable emotional trauma, and how the non-custodial parent specifically proposes to handle such trauma under the circumstances.  Failure to address these issues leaves a gaping hole in the application, and may reflect poorly on the non-custodial parent’s ability to fully grasp and understand the gravity of the situation which young children may face when their primary caretaker is dying.  In this case, notwithstanding the clear need for careful exploration and consideration of the children’s emotional needs at this time, [dad’s] emergent custody application fails to satisfactorily reflect any real and thoughtful discussion or acknowledgement of this issue in any meaningful way.

The court also found that dad completely failed to provide any plan as to how the children would continue to see mom if he were awarded custody, further failing to address the potential emotional impact upon the children – of which the court actually took what is called “judicial notice” under the Rules of Evidence, and failed to initiate any sort of discussions or transition plan, including any notion of meeting with therapists or other professionals to address the situation.  The court, as a result, concluded:

[G]iven defendant’s diagnosis, it is appropriate for the parties, as joint legal custodians and parents, to attempt to constructively communicate with each other, and jointly and responsibly prepare and develop a mutually acceptable contingency plan for implementation of a possible future transfer of custody, if and when medically necessary.

. . .

In this case, the children’s interests can be positively served if both parents jointly and consensually select a child psychologist or therapist who can provide them with important professional guidance on jointly helping the children through this ordeal.  In this fashion, if and when a transfer of custody becomes medically necessary, such transfer may take place under amicable terms, which have ben cooperatively constructed and consensually arranged by two caring parents in advance of a medical emergency.  The terms of such arrangement can be reduced to a proposed consent order submitted to the court.  Of course, any such joint arrangements should logically contain provisions for the children to have ongoing counseling, and should further include as many reasonable opportunities as medically possible for the children to maximize their remaining time with their mother under the circumstances.

The court then actually modified the summer parenting time schedule to provide dad with longer stretches of parenting time, and indicated that it would interview the children at the end of the summer regarding their access to mom and their general well-being.  Dad was to be provided with updates on mom’s condition.

The decision strongly hints at the court’s displeasure with dad,  implying that his application was less a product of emergency circumstances and more of an acrimonious relationship between parents.  Sympathizing with and understanding both mom’s position, and the children’s needs, the emotions literally spill out onto the pages of the decision, and the underlying guidance for how to proceed in such an extremely delicate situation is clear.  It is an unfortunate reality that emergent applications to transfer custody often do not include the degree of thought and concern sought by the court from dad in this matter.