If One Parent is Diagnosed with a Terminal Illness, Does the Other Parent Automatically Get Custody of the Children in a New Jersey Child Custody Case?
There are few things in life that can profoundly affect a family as much as when a parent is diagnosed with a terminal illness.
For divorced parents, the aftermath of such a diagnosis can be even more complicated, as questions about that parent’s ability to parent and the best interests of the children will undoubtedly arise. One New Jersey Family Court recently addressed those questions in A.W. v. T.D.
In A.W. v. T.D, .the father filed an application for emergency transfer of residential custody of the parties’ three children from the mother in light of her diagnosis of incurable Stage VI breast cancer. The mother objected to the father’s application and argued that such a transfer of custody was inappropriate as she was still able to care for the children.
The New Jersey Family Court denied the father’s application and allowed the mother to retain custody of the children. In doing so, the Court stated that it would be fundamentally unfair to conclude that a person’s illness, even one as serious as incurable cancer, would automatically render that person unfit to continue serving as custodial parent.
The Court ruled that, in a New Jersey change of custody application, there must be sufficient evidence, aside from evidence of the custodial parent’s illness alone, which would show that the custodial parent’s illness substantially prevents that parent from continuing to function as a primary caretaker for the children.
The Court also noted that in New Jersey Child Custody cases, a non-custodial parent must always prove that a transfer of custody is in the children’s best interests. Indeed, it is possible that the transfer of custody from the dying parent may cause the children additional emotional harm.
Although the New Jersey Family Court’s ruling in A.W. v. T.D. makes it clear that a pre-existing custody arrangement should not be changed solely due to a parent’s terminal illness, that illness may have legal implications which require the advice and assistance of experienced New Jersey Family Law attorneys. The attorneys at Salvaggio Law Group LLC are here to help.
Salvaggio Law Group LLC devotes its entire practice to New Jersey Family Law matters, including issues relating to child custody.
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