Could chronic migraine jeopardize child custody?

May 24th, 2011 - Posted by Diana Lee

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No doubt many of you reading this have heard about the 33-year-old mother of two with end-stage breast cancer who lost custody of her children because a judge believes her to be an unsuitable caregiver. No one wants to think about being in a similar situation, but the reality is that when breakups get ugly and one parent has a serious chronic illness, any one of us could find ourselves in a similar battle.

Although migraine is generally not a life-threatening illness, those of us with chronic migraine know how debilitating it can be. There is no doubt it interferes with our ability to be the kind of parents and caregivers we want to be. If you were to find yourself in a similar situation would the law be on your side? As is so often the case with complex legal issues, there is no clear cut answer.

Generally speaking in child custody matters the standard for awarding custody is determining what is in the best interest of the child. Factors involved include the parent’s ability to provide financial and emotional support for the child, support available to the parents, the environment the child would be living in, parenting skills and (for older children) the child’s preference. Judges are given a great deal of discretion in making these decisions and child custody is always decided on a case-by-case basis because the facts involved in each situation vary so wildly.

In Alaina Giordano’s case, the court heard evidence that she is unemployed, being treated for cancer and had spent time out of state in an adulterous relationship while her children stayed with their grandparents. Additionally, both parents spent a night in jail following a heated altercation.

Clearly cancer is a key issue in this case, but it is also apparent the judge had other concerns. Of course, I have to imagine one reason Giordano is currently unemployed relates to her cancer diagnosis, which brings us right back to the question of whether it is truly in the best interest of the children to be separated from their mother.

While on one hand reading about this issue has left me feeling like most of us wouldn’t have our children taken from us regardless of our health status, how would our lives look in court if someone was presenting evidence about us? Although we all try to always do our best, we all have faults. It’s scary to think we might have to answer publicly for every decision we’ve made in hopes of keeping our children in our lives just because we have had the misfortune of dealing with chronic migraine.

I don’t know what the right answer is in this situation, but I do know it seems patently cruel to take these children away from their mother in what may very well be the last weeks or months they’ll ever have together before she passes away.