Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Will Having A Permanent Physical Illness Impact My New Jersey Child Custody Case?

As I have discussed in many pieces on child custody, the New Jersey child custody experts, lawyers and judges look to a set of statutory factors when determining custody. Pursuant to the custody statute, N.J.S.A. 9:2-4(c), the fitness of the parents is one of the many factors the court will examine. Typically, when clients think of the term “fit” in this context, they are drawn to thinking about mental illness. This is a common instinct for many of my clients to have; however, what a lot of people do not know is that physical fitness can be a factor that falls under “fitness of the parents” as well. Physical fitness is exactly what it sounds like; how healthy are you physically as a parent? Now of course, I am not saying that a court will consider the common cold, a stomach virus, or allergies as being physically ill and unable to care for your child. Instead, the court will want to know if you have any chronic physical illnesses, such as something serious like cancer. Let’s explore.

In a recent New Jersey case, A.W. v. T.D. 433 N.J. Super. 365 (Ch. Div. 2013), a judge from Ocean County addressed this issue of whether or not a physical ailment should impact a custody determination. Acknowledging from the get-go that the result would be heavily influenced by the facts of the case, the court proceeded to tackle this red- hot issue. In A.W., A.W. and T.D. had divorced and been awarded joint legal custody over their three children. The mom had been granted physical custody over the kids, however, so their primary residence was at their mother’s house. While the children’s mom and dad did live over three hours apart in New Jersey, the mother was surrounded by several of her relatives that lived in the area and visited with the children often.

When the mother was only forty-six years old, she was diagnosed with breast cancer. The doctor’s were not lucky enough to catch the cancer in its earliest stages; instead it was diagnosed as Stage IV. Upon the diagnosis, the mother was hospitalized, but eventually discharged. As soon as the children’s father heard of the news, he quickly filed an emergency application for a modification of the custody order. He wanted the children to start living with him, stating that due to his ex-wife’s physical illness she was no longer the parent best suited to serve their children’s best interests.

Immediately, the New Jersey child custody attorney for the mother opposed the dad’s motion to the court to have custody transferred. She was honest—acknowledged that she would likely get worse in the future and that eventually a transfer of custody might be necessary. However, at the current time she was fully capable of caring for her children and serving their best interests. Not only did relatives that helped her on a daily basis surround her, but she also was still fully functional and stable. The mother even had her doctor comment on her condition stating that although the cancer was incurable, she was of sound mind to continue caring for her children as she had in the past.

The New Jersey family court ultimately found for the mother. The judge stated that the transfer of custody from mother to father would cause more harm to the children than the mother having cancer. He stated “for the children, the loss of the opportunity to live with their mother during what may be the final stages of her life may be irreplaceable, and the resulting emotional damage irreparable.”

Additionally, the court looked to the dad’s motion for a transfer of custody stating “when a non-custodial parent files an application alleging a necessity to immediately transfer custody away from parent with a terminal illness, such application must at the very least logically acknowledge and address the critical questions of whether such immediate transfer of custody may cause the children serious and irreparable emotional trauma, and how the non-custodial parent specifically proposes to handle such trauma under the circumstances. Failure to address these issues leaves a gaping hole in the application, and may reflect poorly on the non-custodial parent’s ability to fully grasp and understand the gravity of the situation, which young children may face when their primary caretaker is dying.”

While the court decided, given the facts presented in the case, that the children would be best off if they remained in their mother’s physical custody despite her illness, it did modify the summer parenting time schedule. It did so in order to grant the father with more time to spend with his children when they would need his support most. Furthermore, he was to be frequently updated on his ex-wife’s physical condition as the cancer progressed. It is important to note that cases like these are very fact-specific. If you or a loved one is suffering with a terminal physical illness and have questions about how it will impact a custody determination, please do not hesitate to contact my New Jersey divorce and family law firm today. Thank you.