In a case of first impression, a Monmouth County judge dealt with the difficult issues of when and how a parent’s terminal illness impacts custodial rights. In A.W. v. T.D., the parties divorced in 2002 after having three children currently between 12 and 14 years of age. The parties share joint legal custody, with the mother (T.D.) serving as the children’s primary custodian and caretaker.

T.D., age 46, was recently diagnosed with Stage IV incurable breast cancer. As a result of this diagnosis, the father (A.W.) filed a petition for a transfer of custody. T.D. opposed the application and stressed that she had family members who could provide her with physical, financial and emotional support.   T.D.’s treating physicians testified that while her prognosis was terminal, she was presently stable and her judgment was not impaired by medications.

The judge denied A.W.’s request for a transfer of custody by applying long standing principles of New Jersey law that a non-custodial parent seeking to change the custodial status quo has the burden of proving that the potential for serious psychological harm accompanying such a move would not become a reality.  In reaching its decision, the court took judicial notice that the pending death of a parent is one of the most traumatic events in a child’s life and that the children needed to spend as much time with their mother as reasonably possible.  The judge concluded that A.W.’s application failed to consider the children’s emotional needs and did not include any plan for how he would provide the children with “substantial continuing access” to their mother were he awarded custody. Finally, the judge determined that although A.W. had not met his burden of proof, should T.D.s condition materially worsen either she or a relative must inform A.D. so he can be prepared to assume custody on relatively short notice.

What conclusions can be drawn from this case? Some believe that the decision represents the best in a judicial system which is routinely maligned by special interest groups or for political purposes. Further, the simple minded cliché that “hard facts make bad law” cannot apply. Unless, or until, a better system comes along (which some view as unpromising and unnecessary), we should commend judges for “getting it right” in difficult circumstances such as described above.