Recently in Monmouth County, New Jersey, a Judge had to make a decision in a case of first impression regarding custody and terminal illness.  In the case (A.W. v. T.W.), the parties had been divorced since 2002.  They had three children currently between the ages of 12 and 14.  The parties shared joint legal custody, with the mother (T.D.) serving as the primary custodian and caregiver.

At the age of 46, T.D. was diagnosed with Stage IV incurable breast cancer.  As a result of the diagnosis, the father (A.W.) brought a motion to transfer custody.  T.D. opposed the application and stated that she had family members who could provide her with physical, financial and emotional support.  T.D.’s treating doctors testified that although her prognosis was terminal, T.D. was presently stable and her judgment was not impaired by any of her medications.images

The Judge denied A.W.’s motion by applying long standing principles of New Jersey law wherein the non-custodial parent who seeks a change in custody has the burden of  proving that the potential for serious phsycological harm accompanying such a move would not become a reality.  In this case, the Judge took judicial notice that the pending death of a parent is one of the most traumatic events in a child’s life and that these children needed to spend as much time as possible with their mother.   The Judge concluded that A.W. 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.

We have all experienced bad decision making by judges, especially in in the Family part.  Here, this judge got it right and should be commended, especially given the difficult circumstances in this case.

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