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….