In a case of first impression, a New Jersey judge has refused to strip a divorced mother of primary custody of her children even though she has terminal and inoperable breast cancer.

Ocean County Superior Court Judge Lawrence Jones said granting the father’s motion for an emergency change in the children’s primary residential status could cause them emotional harm.

“It would be fundamentally inequitable and inappropriate for this court to conclude that a person’s illness, disability, or condition, even a condition as serious as Stage IV cancer, automatically renders a person unfit per se to continue serving as a custodial parent,” he wrote in A.W. v. T.D., a ruling approved for publication on Tuesday.

“To the contrary, from a logical standpoint, a decision to transfer custody away from a custodial parent cannot fairly or properly rest solely upon an illness, disability, or bodily condition.

“[T]he parties’ young children may potentially face immediate and irreparable harm if the court does transfer residential custody away from defendant at this time. The harm at issue is not physical harm, but emotional harm resulting from a forcible, premature separation of the children from their dying mother and primary caretaker,” Jones continued.

“In this case, the parties’ children may have a tremendous emotional need to remain with defendant, and to spend as much time with her as reasonably possible under the circumstances. For the children, the loss of this opportunity during what may be the final stages of defendant’s life may be irreplaceable, and the resulting emotional damage irreparable.”

The children’s attorney, Jonathan Petro, says Jones “understood both parties’ issues and understood the children’s needs. The ruling addresses the emotional health of the children, and that is the most important part.”

Petro, of Carluccio, Leone, Dimon, Doyle & Sacks in Toms River, notes that the mother’s medical condition has remain unchanged since Jones’ original ruling, but declines to elaborate further.

The couple divorced in 2002. They have three minor children ages 12 to 14. The mother, T.D., now lives more than three hours away from the husband, A.W., but in close proximity to her family.

The parents share joint custody, but T.D. is the parent of primary custody. After she was diagnosed, A.W. petitioned to have himself named the parent of primary custody.

During a hearing, two doctors testified on T.D.’s behalf and both said her condition was physically stable, she was fully functional and her judgment was unimpaired, despite the amount of medication she was taking.

Jones said T.D. was able to travel to the hearing without difficulty, was “sound-minded,” “intelligent” and “articulate” on the stand.

At this point, he said, there was no reason for him to conclude that T.D. could not continue to function as the parent of primary custody and that A.W. did not meet his burden of proving that there should be a change in the children’s custody arrangements.

“She acknowledges her diagnosis, as well as her understanding that, at some point in the future, her condition may deteriorate to the point where she can no longer physically care for the children,” Jones said. “She further notes that under the circumstances, a transfer of custody to plaintiff may ultimately be inevitable and necessary. However, defendant also contends that such a transfer of custody is premature at this time.”

Jones said A.W. made his motion without first trying to meet with his ex-wife and make arrangements in the event she becomes unable to care for the children.

“[T]he parties as joint legal custodians have an ongoing obligation to attempt to communicate and cooperate with each other on important child-related issues,” Jones said.

The judge also suggested that the parents retain a psychologist or therapist to help them through what will be a traumatic change if the mother dies if her condition deteriorates. Lastly, he also ordered that the mother or her family keep him and the father up to date on her medical condition.

Attempts to contact the father, who represented himself, were unsuccessful.

Family law authority John Paone Jr. says Jones’ decision is well-reasoned.

“The judge did a good job of trying to protect the best interests of the children,” says Paone, of Woodbridge’s Paone, Zaleski, Brown & Murray. “Obviously, this is not a pleasant situation, but it does come before the court from time to time.

“The mother is still able to do the job,” Paone says. “If her situation gets worse, there is some mechanism in place for a change.”

See related commentary on the A.W. case in Voice of the Bar.