Last year in Durham, a family court judge ordered that primary custody of two children should be given to the father if the mother, Alaina Giordano, did not move to Chicago to be closer to him. This ruling was based on the mother’s fight with stage four breast cancer and the judge’s opinion that the course of the mother’s disease was “unknown.” Ultimately, despite an appeal and a temporary stay of custody transfer, custody transferred to the father and remained there until Giordano’s death in June.
In North Carolina, long-term illness or potentially fatal health conditions are not express factors in determining of child custody. The initial child custody determination is based on a “best interests of the child” standard, and a court will award custody to the person, agency, organization, or institution that will best promote the interest and welfare of the child.
To make this decision, the court considers several factors, including:
- Age of children
- Child and parent safety
- Ability of each parent to provide for the child’s mental, physical, emotional, and medical needs
- Which parent has provided a majority of the child’s care up until divorce
- Evidence of abuse
- Level of adjustment and attachment of children to their home, family, community/neighborhood, and school environment
- Child’s preference (if able to express their own wishes, typically if the child is at least 10 years old)
- Health of each parent
A family court can modify a child custody order using a two-step process. First, the court must find that changed circumstances exist. Second, given those changed circumstances, the court must find that it is in the best interest of the child to change the custody order. Your Durham divorce lawyer will tell you that changed circumstances can occur either on the part of the parent or on the part of the child.
Kane Snyder, Giodano’s estranged husband, was prompted to seek a modification of the custody order because of a change in Giodano’s health. As Giordano’s health decreased, the court analyzed her choices to use “unconventional” cancer treatments and the resulting “crisis” that produced on the children, resulting in the court’s finding that the children were left unattended and the older child had to fulfill the parental role for her younger sibling.
The court further determined that her decreasing energy levels and inconsistent maintenance of her medical treatment were causing her care of the children to suffer. Further, it determined that Giordano’s multiple medical appointments were hurting her ability to find employment. The court also found that her continually decreasing medical condition would “at some point, seriously impair her ability to be as available to the children as might be desired.”
If you are in the midst of a custody battle and receiving long-term medical treatment or have been diagnosed with a condition that requires such treatment, you should consult with your Durham divorce lawyer about how this may impair your case for custody and visitation rights. Your Durham divorce lawyer will consider the issues addressed in this case as well as other factors that will affect the court’s decision and advise you accordingly.
