United States: A Parent’s Illness And Its Impact On Custody

Last Updated: November 20 2013
Article by Robert A. Epstein

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Robert A. Epstein
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions