Looking at Facts, Judge Made Right Call in Highly-Publicized Giordano Cancer/Child Custody Case

No sooner had Judge Nancy Gordon transferred custody of their two children from Alaina Giordano to her ex-husband Kane Snyder, than the machinery of uninformed reaction went into high gear.  That was back on April 25 when the North Carolina judge transferred custody to Snyder who lives in Chicago.

Now the same judge has upheld her previous order.  Read about it here (ABC News, 6/8/11).

It seems that the two had had a stormy marriage and divorce with multiple allegations of domestic violence that saw each parent spend time in jail.  There was evidence of mental illness, violations of court orders and what came briefly to be a cause célèbre – Giordano’s Stage 4 breast cancer.

According to practically everyone who leapt to the barricades to decry the judge’s ruling, Giordano’s cancer – and nothing else – was what caused the change of custody.  To anyone who took fifteen seconds out of their busy day to actually think about the issue, it surely would have seemed unlikely that a judge would do such a thing.

And of course she hadn’t.  In fact, there were multiple factors that influenced Judge Gordon to give primary custody to Snyder.  For one thing, Giordano doesn’t have a job, and Snyder has a good one.  So financially the kids will be better off with him.

Gordon highlighted other concerns in the original ruling, however, such as mental health concerns and a tendency to involve the children in parental disputes, that called into question Giordano’s suitability as a primary caregiver, regardless of her health.

In short, Judge Gordon had a number of perfectly sound reasons for transferring primary custody to the children’s father.

But the punditocracy was having none of it.  Article after article, blog after blog informed one and all that Gordon had taken Giordano’s children because she had cancer.  They never paused to consider the fact that countless parents have some form of cancer and judges including Gordon don’t deem them unfit to parent.

What came through more than anything was the clear sense of entitlement with which those opiners invested Giordano.  “She’s the mother and the kids are hers” was the none-too-subtle message.  Indeed, the number of pieces that called the children “hers” as opposed to “theirs” was astonishing.  If he hadn’t gotten primary custody, you’d have thought the children had no dad.

Still, one of the reasons Gordon transferred custody was Giordano’s advanced cancer which thankfully seems to be in remission at least for the time being.  And that raises a legitimate question – to what extent, if any, should physical illness or incapacity on the part of one parent weigh in the custody balance?

In accordance with the Uniform and Marriage and Divorce Act, it is not uncommon for family court to take into account the health, both physical and mental, of a parent in making custody decisions.

“Substantial case law and psychological research consistently indicate that the physical and mental health of the parent constitute an important factor in considering custody of children following divorce,” Dr. Gerry Koocher, professor of psychology at Simmons College in Boston, said.

And Gordon had in fact taken testimony from a psychologist on exactly that issue.

In her ruling, Gordon cited forensic psychologist Dr. Helen Brantley: “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.”

Hmm.  I’d like to know more about the impact on children of living with a parent with a serious, potentially life-threatening illness.  I’m sure Brantley is right that children want a normal childhood, but countless children adjust to not having one.  The issue is whether living with such a parent truly affects the long-term well-being of the child.  If there’s good evidence that it does, then I’ll take Brantley at her word.  Until then I’m with Holly Prigerson.

Holly Prigerson, director of psycho-oncology research, psychosocial oncology and palliative care, at the Dana-Farber Cancer Institute in Boston, said, “Cancer is not leprosy … young children want to be with their parents, even if ill. That’s not to say that seeing a parent so ill will not be upsetting for children — it will be frightening — but not seeing a mother and not receiving honest answers about why mommy is not there may be more detrimental to the child’s mental health and functioning than the reverse.”

It probably depends a lot on the age of the child.  Older children are more capable of understanding and dealing with a parent’s illness than are little ones.  The Snyder/Giordano kids are 5 and 11.

And of course if an illness truly affects a parent’s ability to do the normal daily tasks of parenting, then it’s clearly appropriate to limit that parent’s time with the kids.

On a related note, Fathers and Families has been on the front lines fighting for the rights of parents with disabilities.  In California, for example, we were instrumental in passing legislation that prohibits judges from restricting custody because of a parent’s disability unless that disability interferes with the person’s ability to parent.

But that’s not the case with Giordano.  Her cancer doesn’t impair her parenting ability, so I’m skeptical of its being used as a factor in deciding custody.  Still, Brantley and those who have researched the matter may be right in advising courts to err on the side of giving custody to non-ill parents.  As I said, I’d like to know more about what they’re hanging their hats on.

All that said, I’d be surprised to see Gordon’s order reversed.  There were many factors favoring primary custody for Snyder.  The fact that Giordano’s illness ever made the news is due more to an under-informed punditocracy and a sense of maternal entitlement than a real appreciation of the issues involved in child custody cases where one of the parents is gravely ill.

Thanks to John for the heads-up.

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