A North Carolina judge appears to have concluded that the children of a woman who has breast cancer should be moved to their father's home because a psychiatrist said they would be better off in his cancer-free world.

Alaina Giordano with her children

Alaina Giordano's cancer has spread to her bones but medical records show her monthly treatments have kept her condition “stable and not progressing.” She separated from her husband, Kane Snyder, in January 2010 and the couple's two children, ages 11 and 6, have been living with her in Durham, N.C., since he moved to Arlington Heights, Ill., nearly a year ago.

But Snyder sued Giordano for primary custody. And Durham County District Court Judge Nancy E. Gordon recently decided that “it is in the children's best interest to move to Illinois to be with their father at this time” — even though she described Giordano as “able-bodied and capable of caring for the children.”

Gordon gave particular weight to the opinion of Dr. Helen Brantley, a forensic psychiatrist whom she appointed to perform a custody evaluation.

“This Court considered Dr. Brantley's testimony,” Gordon said,

that based on research and her own experience, children who have a parent with cancer need more contact with the non-ill parent. The more contact they have with the non-ill parent, the better they do. They divide their world into a cancer world and a free of cancer world. Children want a normal childhood, and it is not normal with an ill parent.

But taking steps to improve the toxic relationship between Giordano and her estranged husband would probably do more to give their children a “normal" childhood than uprooting them from their mother. And other experts have challenged Brantley's opinion.

“Cancer is not leprosy ... young children want to be with their parents, even if ill,” Holly Prigerson, a psychiatry professor at Harvard Medical School, told ABC News.

Giordano was diagnosed with Stage IV breast cancer in December 2007. She and Snyder separated after she confessed to him that she had been having an affair with another man. At one point, they had an altercation that resulted in both of them spending a night in jail.

After Giordano on one occasion went into Snyder's car to give their son an extra goodbye hug, he even accused her of “violating his space."

“[B]oth parents contribute to the conflict without insight into their role in the exacerbation of the situation ... and both parents are consumed by the conflict to an extent that interferes with their ability to pay attention to their children's needs,” Gordon noted in her ruling.

The issue of which parent should get primary custody of the children is undoubtedly a difficult one. Both parents say they can't move from their current locations — Snyder has a job working for Sears in Chicago while Giordano says she has a support system in Durham that includes her medical team at Duke University.

Dr. Brantley recommended that the children should live primarily with Snyder “because of the deteriorating condition of their mother's health.” She also expressed concern that Giordano withdrew from traditional medical care for more than a year, choosing to pursue alternative treatments such as a macrobiotic diet, yoga and acupuncture.

But if Giordano's condition is “stable,” how could her health be deteriorating? And studies estimate that 60 percent of cancer patients now try alternative therapies.

As for Gordon, she said that "the course of [Giordano's] disease is unknown" but also found that her cancer "likely will, at some point, seriously impair her ability to be as available to the children as might be desired."

Giordano has appealed Gordon's decision. “It is absolutely outrageous — and unprecedented — that a court would cite my illness as the reason to take my children from me, and uproot them from their home,” she said. “I am confident that we will prevail.”

Appeals courts can overturn a child custody order where there is “a clear showing of abuse of discretion.” But even if Gordon should have questioned whether a child who has a parent with cancer is better off with the non-ill parent, Giordano may have hurt her case by apparently not presenting an expert witness to counter Brantley's testimony.

By Matthew Heller
6/8/11