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Custody Ruling Citing Parent's Cancer Draws Wide Attention

A North Carolina judge has just issued a ruling in a child custody case that is drawing an unusual amount of scrutiny and comment from both legal and cancer experts.

Judge Nancy Gordon awarded primary custody of two children to their father in Chicago, ordering that they must move by June 17 from the Durham, North Carolina, home they share with their mother, who has stage 4 breast cancer.

The woman's cancer, though debilitating, is stated by medical authorities to be stable and not progressing. She questions the decision, calling it "particularly dangerous to base a custody case on a diagnosis."

The judge -- who limited the woman's custody to holiday and weekend visitation, which she says she cannot afford due to high airfares for her children -- stated in her ruling that, "Children want a normal childhood, and it is not normal with an ill parent."

That comment is raising eyebrows, with some people questioning whether protecting children from an ill parent is advisable or based on firm legal principles.

Glenn Cohen -- an executive at a Harvard University center focused on health law, biotechnology and bioethics -- concedes, for example, that it might make sense for a judge to consider a seriously ill or likely-to-die-soon parent when analyzing a custody matter. In a lesser case, though, he cites a host of worries.

"It seems unusual to me," he says, "and I would worry that it is potentially discriminatory for a court to say that the mere fact that an otherwise healthy parent at no imminent risk of death or serious impairment has been diagnosed with cancer should per se exclude them from custody."

"Cancer is not leprosy," says Holly Prigerson, a cancer institute director. "Young children want to be with their parents, even if ill."

In the instant case, it is unlikely that the judge's ruling was based solely on the woman's cancer, as there were several other factors involved in the child custody dispute, including restraining orders and allegations of domestic violence and cheating.

The woman says she intends to appeal the ruling.

Related Resource: ABC News, "Judge Cites Mom's Breast Cancer in Denying Custody of Children" May 10, 2011

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