Not until the parent becomes unable to care for the children, holds the New Jersey Superior Court in A.W. v. T.D. (N.J. Super. Ct. Ch. Div. Nov. 19, 2013). (Note that this relates to a change in custody, and does not necessarily govern an initial custody decision.) [UPDATE: I now include a link to the opinion, thanks to a commenter who passed it along.]
This case presents a serious issue of first impression regarding the impact a terminal cancer diagnosis may have on an existing custody arrangement. Plaintiff-father, who is the non-custodial parent, seeks an order granting emergency transfer of residential custody of the parties’ three minor children [ages twelve to fourteen] from defendant-mother, on the grounds that she now has incurable stage IV breast cancer requiring various medical interventions….
[Mother] … acknowledges … that, at some point in the future, her condition may deteriorate to the point where she can no longer physically care for the children. She further notes that under the circumstances, a transfer of custody to [father] may ultimately be inevitable and necessary. However, [mother] also contends that such a transfer of custody is premature at this time, and that at least presently, she is still able to care for the children. She stresses that her multiple family members who live nearby can all help provide her with physical, financial, and emotional assistance as necessary.
[Mother]’s two treating physicians, Dr. Paul Fowler and Dr. Charles Padgett, both confirm that [mother]’s cancer is, in fact, incurable and terminal. However, each doctor further opines that [mother] is presently stable and fully functional. They advise that while [mother] takes prescribed medication for her condition, her judgment is unimpaired. Most significantly, each physician concludes that that [mother] is able to continue caring for the children at this time….
It is true that, in certain cases, the facts and evidence may reflect that, due to illness or injury, a custodial parent may no longer be able to appropriately care for a child’s health, safety, and welfare…. [I]n such factual circumstances, the court in its discretion may conclude that in order to protect a child’s best interests, a transfer of residential custody to another parent or caretaker may be necessary, no matter how morally blameless the custodial parent may be. The reasoning behind this principle is that a child’s welfare is generally superior to the rights of either parent….
[But i]n the present case, the facts and evidence reflect that while [mother]’s illness may render her unable to care for the children in the future, she presently is able to continue in her capacity as primary custodian….
Moreover, … [n]ot only has [father] provided insufficient evidence that the children are presently facing immediate and irreparable harm, but the exact opposite may be true. Specifically the parties’ young children may potentially face immediate and irreparable harm if the court does transfer residential custody away from [mother] at this time. 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.
A non-custodial parent who is seeking to change the child’s custodial status quo has the burden of proving by a preponderance of the credible evidence that the potential for serious psychological harm accompanying or resulting from such a move will not become a reality. Judicial consideration of a child’s emotional needs is especially critical in a custody case such as the present one, where three young children are facing the possible premature death of their mother. One does not need to be a trained psychiatrist or psychologist to recognize the potentially enormous significance of this issue…. [P]ending death and loss of a parent can be one of the most emotionally traumatic and devastating events in a young child’s life, and potentially even more destabilizing when the dying parent has been the child’s primary caretaker.
In this case, the parties’ children may have a tremendous emotional need to remain with [mother], 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 [mother]’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 notes that under prior arrangement established well before this emergent application, [father] was going to have the full summer of 2013 with the children. While he will still be entitled to part of summer vacation, under the circumstances the court will modify the summer schedule so that the children can spend additional intervening stretches of time with [mother] as well….
Finally, the court directs that if [mother]’s medical condition materially worsens, then either [mother] or a designated relative on her behalf shall immediately advise [father] of same. [Mother]’s father has confirmed in court, with [mother]’s consent, that he is willing to communicate such information to [father] if [mother] is unable to do so on her own. The children’s best interests require that [father] be kept fully advised of any significant developments and changes in circumstances, so that [father] is as prepared as possible if future developments require him to assume residential custody of the children on relatively short notice.