Global Family Law Services

The Alaina Giordano Story: The Children’s Best Interests in Light of a Parent’s Terminal Illness

| May 23, 2011 | Best Interests of the Child

Her story has garnered national and international coverage and sympathy, spawned an online petition to North Carolina Governor Bev Perdue that is nearing 100,000 signatures, prompted its own Facebook site, and launched Durham County District Court Judge Nancy E. Gordon to infamy. In June, North Carolina mother Alaina Giordano will be required to relinquish possession and custody of her two children, ages 11 and 5, to her ex-husband Kane Snyder. Snyder lives 800 miles away, in Chicago.

Family law courts regularly tackle issues of custody, support and visitation of minor children. In and of itself Judge Gordon’s decision isn’t notable. But the decision was both complicated and vilified by the stage IV breast cancer that has plagued Giordano for the past four and a half years and metastasized to her bones.

Both the press and the general public have been quick to side with Giordano. After all, what kind of a person kicks someone when she is already down? What kind of a judge, particularly a female judge who ostensibly might be a mother herself, would rip children away from a mother who is valiantly fighting against a terrible disease, right when she most needs the strength and purpose that only her children can provide?

But was Judge Gordon’s decision really so wrong?

In custody battles, parents usually forget that they aren’t actually the center of the discussion. Instead, the children are the primary consideration. The question is what is best for the children, not what is best for the parents.

Consider this extreme case. Father was an abusive alcoholic for the first three years of his son’s life. But for the past two years, Father has worked hard to clean up his act, regularly attending therapy and Alcoholics Anonymous, holding down a steady job, and providing for both the emotional and physical needs of his son. Mother, meanwhile, adores her son as well, and doesn’t want to lose custody of him. But Mother is addicted to prescription painkillers. Her addiction prevents her from holding down a job, and a steady parade of drug users and pushers come through her house. Some nights she gets so high that she passes out leaving her five year old to find his own way to bed, and sometimes she isn’t even coherent long enough to feed him dinner. A judge’s choice is easy there, isn’t it? There is no question that both parents love the child, but only one is capable of giving him the care that he needs.

But some might argue that Mother has a choice under those circumstances. If she loves her son as much as she claims, she can work to overcome her addiction. So, let’s consider another extreme case. What about three year old twin daughters who are equally loved by both Mother and Father. Following their divorce, Mother and Father were awarded shared parenting, with the children spending equal time with both parents. Things progress just fine until Father is in a terrible car accident that renders him a quadriplegic. Now he needs a home health aide to help him with basic tasks of everyday living. He unfortunately can no longer care for himself, let alone chase after a pair of precocious toddlers. In that case, should a judge modify the possession schedule based upon this tragic turn of fate in order to ensure the children are adequately cared for? Most people would say yes.

The above examples are hypothetical and extreme ones at that. Further, they are unlike most real custody cases in that they merely consider a child’s physical needs. They fail to account for the psychological and emotional reasons why it may make sense to have children with one parent or the other. In the same way, the public and the press have oversimplified Giordano’s case, focusing predominately on her physical and financial ability to care for her children. Headlines scream that “Mother loses custody of her children because of cancer diagnosis!” Lawyers and analysts dissect what precedent Judge Gordon’s decision creates for parents who are in less than perfect health, or even those who engage in risky but legal behaviors like smoking. But was the decision really that simple? And, was the decision solely about the cancer diagnosis?

Because of the private nature of domestic relations cases, most, or perhaps all, family law courts protect filings and decisions differently than in other cases. And little has been made public about all the issues in Giordano’s case. It has been made publicly known about this case that the custody decision was 27 pages long – hardly a straightforward decision. It has been made publicly known that the custody battle was replete with allegations of abuse, adultery, and mental illness. It has been made publicly known that the couple, while still married, moved to North Carolina for the father’s job, and that his job subsequently took him many miles away to Chicago. It has been made publicly known that the medical team holding Giordano’s cancer at bay are from Duke University. It has been made publicly known that Giordano will not leave North Carolina because her doctors are based there, while Snyder will not leave Chicago because his livelihood is based there. And it has been made publicly known that at least one renowned expert witness opined during the litigation that it was better for the children, psychologically, to have more contact with a non-ill parent, both to strengthen that relationship in preparation for the death of the ill parent, as well as to instill security and stability in their lives, rather than forcing the children to bear witness to the many doctor appointments, debilitating treatments, and visible suffering most often inherent in a cancer diagnosis.

In the 27 pages that constitute her opinion, Judge Gordon no doubt considered far more than just Giordano’s physical ability to provide a home and physical care for the kids. Under the best interests of the child standard she needed also consider the psychological element. The death of one’s parent is always difficult to handle, but it is substantially more difficult when the children are very young, without the perspective and maturity that comes with age and experience. And, while it is true that Giordano’s stage IV cancer could stay at bay for years, there is an equal or greater probability that it won’t. Does it make sense for the children to watch their mother be ravaged by aggressive chemotherapy or radiation treatments? And what happens if Giordano does succumb to the disease? Regardless of Giordano’s assertions that Snyder had been “a weekend father at best,” the children would no doubt be sent to live with their father should their mother pass away. Doesn’t it make sense under such circumstances for the children to get settled in to friends, school, family, and life in Chicago, starting to form the bonds with their father sooner, rather than later, while they still have the luxury of time? Indeed, Good Morning America noted Judge Gordon’s citing of forensic psychologist Dr. Helen Brantley, who apparently stated that “The more contact [the children] have with the non-ill parent, the better they do. They divide their world into the cancer world and a free of cancer world. Children want a normal childhood, and it is not normal with an ill parent.”

It is easy to take a simplistic view of this situation and conclude that the children should remain with their mother for as long as possible. While the children arguably will benefit from having that relationship, the decision is not nearly as simple as most would have it be. So many other factors should, and no doubt were, considered. While it is a tragic story, much of the press and the general public have formulated an opinion in a vacuum, without a full consideration of the policy reasons that led to the current state of the child custody laws. The law is little concerned with whether Alaina Giordano’s health and well-being is best served by retention of custody. Instead, and rightfully so, the law is concerned with what is in the best interests of her and Snyder’s 11 and 5 year old children. And, while it is counterintuitive in our society to take children from their mother, and seemingly unfair given Giordano’s terminal illness, it is difficult to argue that Judge Gordon got it wrong. The press and general public can continue to argue about the parade of horribles that this precedent will bring about, but, ultimately, the well-being of two children was and continues to be the most important consideration.

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