Parents diagnosed with
commonly fear dying before their children have grown. But an unusual child custody battle in
has raised another troubling concern: Can the illness be used against the sick parent?
The ongoing case, which has stirred up an emotional debate over cancer discrimination, involves Alaina Giordano, 37, a mother with
who recently lost primary custody of her 11-year-old daughter and 6-year-old son to her estranged husband.
Though the children now live with Giordano in
, the judge's ruling means they must move to the Chicago area on June 17 to live with their father in Arlington Heights. Among the factors cited in the lengthy decision, which Giordano has appealed, were concerns over her health and the uncertainty over how long she will live. Her stage 4 breast cancer has spread throughout her body, but people can live for years with the advanced disease.
To be sure,
cancer is just one factor in a complicated and messy custody case with a high degree of conflict. Both parties were said to have "anger management issues," they both spent a night in jail after a fight, and they both filed for domestic violence protective orders. There's also evidence that Giordano was unwilling to cooperate with her husband, a common reason for adjusting custody arrangements.
But the prominent role that Giordano's terminal illness played in the ruling and the judge's assertion that "the more contact (the children) have with the non-ill parent, the better they do," has rallied angry supporters to Giordano's side, spooked cancer patients and survivors, and raised questions about how a parent's illness might impact the well-being of the child.
In the weeks since some of the facts about Giordano's case hit the airwaves and the Internet,
social workers have fielded calls from worried patients, wondering whether they too could lose their children. More than 103,000 people have signed an online petition titled "Do not allow NC Judge to take Alaina Giordano's children just because she has cancer." A hot debate on the case broke out on the American Bar Association's website.
"It touched a nerve," said breast cancer survivor Emily Cousins, 41, who has two young children and writes for the Stupid Cancer Blog, a support group for young survivors. "People in our community had a strong reaction (to the case) and used social media to spread the word because we can all imagine, 'What if a judge used our diagnosis against us?'"
Though state custody cases are fact specific and unlikely to set a precedent, some legal experts found the focus on cancer unsettling.
"It's a slippery slope," said attorney Monica Fawzy Bryant, Midwest regional director for the Cancer Legal Resource Center. "If we start applying to cancer, where does it stop? If someone has
, is that grounds to lose custody?"
For some survivors, the most appalling part of the decision was the implication that Giordano's cancer may burden the children. Citing expert testimony from North Carolina
Brantley, the judge ruled that children "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. … The longer the illness goes on the more maladjustment children have. It is difficult for children to watch their parents deteriorate."
But separating children from an ill parent can also be problematic. Though the situation may not be "normal," it's also reality, and it's important that the parent doesn't simply disappear, said clinical psychologist Linda Rubinowitz, director of the clinical fellowship program at the Family Institute at
"Cutting them off (from a parent) leaves a big hole, a lot of curiosity and a lot of worry," she said.
Giordano's husband has not returned calls seeking comment. But one of his attorneys, Jeffrey M. Leving, said the focus on her health is misleading.
"It's not a breast cancer case, it's not a divorce case — it's purely a custody and removal case," said Leving, a family law attorney and fathers' rights advocate.
Leving said his client hasn't filed for divorce because his job provides Giordano's health insurance. "If he loses his job, the children will have no financial support and the mother will have no health insurance for her cancer care," Leving said.
In general, physical and
or illness is considered in custody cases only if it can be shown to affect parenting. "Illness can also come into play if one parent is using cancer against the other parent or with insurance issues," said Bryant. "With custody cases it's particularly difficult because the standard is what's in the best interest of the child. That can be a subjective determination."
The National Cancer Institute estimates that 24 percent of adults with cancer are parenting children younger than 18. It's estimated that only a small percentage of them are in a fight for custody. "But for those who battle it, it's heart-wrenching," said Rene Barrat-Gordon, an oncology social worker at the
Medical Center's Taussig Cancer Institute.
Children are a major reason why many cancer patients endure their harsh treatments, Barrat-Gordon said. "They think, 'If I keep doing
, I'm going to see my child graduate.' So if someone is threatening taking their children, it's the worst a woman has to deal with."
For Chicago attorney Pam Jann, going through a divorce on the heels of breast cancer treatment was an "overwhelming" experience.
At first Jann struggled with the idea that she might not be around to raise her 7-year-old daughter. Then she began worrying how she would get insurance — as an independent consultant, she'd been on her husband's policy — and whether her body could endure the
of the split.
But perhaps the most agonizing moments, she said, come when the house is empty and her daughter is spending time with her ex. While she has primary custody, "to not be able to hug your daughter when you want to is gut-wrenching," said Jann, a two-time cancer survivor who also underwent radiation treatment for non-
when she was in college.
"The first weekend without her, I fell to my knees," said Jann, a board member for the Lynn Sage Cancer Research Foundation. "I've never experienced pain like that. I look at her now in a totally different light. To me, every second matters."
Giordano was diagnosed with stage 4 breast cancer in December 2007 when she was 33; she and her husband separated in January 2010. Though the cancer has spread throughout her body, monthly treatments at Duke Medical Center have kept it stable. The judge found Giordano to be "able bodied" and "by all accounts a capable, caring and loving mother who has an excellent relationship with her children."
Dr. Keith Block, director of the Block Center for Integrative Cancer Treatment in Evanston, said he has seen patients care for their children until the last few weeks before their death. "Each case is different, but one should absolutely not assume that a diagnosis of stage 4 renders a woman unable to take care of her children," said Block. "More importantly, I have had patients live for years after a diagnosis of stage 4 breast cancer."
In August, while separated, Giordano's husband moved to the Chicago area for a job at Sears Holding Inc.; she has cared for the children on her own since then. But her husband, who is supporting the family financially, sought custody of their children, arguing that he had a job — as a stay-at-home mom, Giordano has no income — and that his wife's health was uncertain.
Giordano's husband has said he can't move back to Durham because of limited job opportunities, according to the court ruling. Giordano's support system and medical team are in Durham, and she doesn't want to relocate to Chicago.
"If I thought it was in best interest of my children, I'd already be there in Chicago," said Giordano. "It's just not."
Giordano's attorneys have filed a motion to keep the children in Durham pending a decision on an appeal filed last week. In the meantime, Giordano is trying to balance her job as a solo parent with the newfound public attention — she has appeared on the "Today" show and
and spoken at length with reporters. Over the last several weeks, she has chaperoned several school field trips, held a birthday party for her son and received thousands of messages from well-wishers from around the world on her
fan page, which was set up by a childhood friend.
On her private Facebook page, supporters cheer her on. "Go get 'em!" wrote one friend. "As a mom in Durham with a father in N.Y. that hasn't done much for her kid … I root you on from the top of my lungs to my toes!!"
Others say that, despite the difficult and sad circumstances, the judge made a correct decision that was based on factors other than Giordano's health.
"It's one thing to switch custody because someone is sick; it's quite another to switch because the sick person does not adequately (in the court's opinion) provide contingency arrangements for the children in case of medical emergencies (which are likely to be fairly common)," said Katharine Baker, a law professor at IIT Chicago-Kent College of Law who has read the decision.
"The problem is that there were lots of things of concern to the court," Baker said. "And it's impossible to say what was actually motivating this judge."