Cancer claim rocks custody case:

North Carolina attorneys dissect the Durham case that's got the world talking By Allison Retka Dolan Media Newswires RALEIGH, NC--''Has anyone even read this thing?'' The question blared in Jonathan McGrint's mind as news of a cancer-stricken Durham mother's child custody change flashed around the world last week. ''Young Mother Loses Custody of Children Because of Breast Cancer; Who's Next?'' asked the Huffington Post. ''Losing Custody Because She Has Cancer,'' trumpeted a New York Times mothering blog. McGrint, a Raleigh family law attorney, couldn't believe what he was seeing. ''The media coverage has been incredibly irresponsible,'' he said. ''I think even for a nonlawyer, it would be quite clear that's not what the decision says.'' The decision in question is a 27-page custody order issued April 25 by Judge Nancy E. Gordon of the Durham County Family Court. In it, Gordon weighs a possible change of custody for Sofia Snyder, 11, and Kane ''Bud'' Snyder, 6, the children of Kane Snyder and Alaina Levane Giordano, a North Carolina couple separated since January 2010. Since their separation, Snyder has moved to Chicago for a job with Sears. The children primarily live with Giordano in Durham. After carefully outlining 123 findings of fact, Gordon set up two possible scenarios. If Giordano moves to Illinois to be closer to her children, she will enjoy the same custody arrangement that's been in place during the couple's separation. If Giordano remains in North Carolina, she will have custody of her children on alternating weekends and some holidays, Gordon ruled. But blog after blog trumpets Giordano's supposed ''loss'' of custody. As of Wednesday, nearly 20,000 Facebook users have ''liked'' a page called ''Alaina Giordano Should Not Lose Her Kids Because She Has Breast Cancer.'' ''The mother keeps saying, 'They're taking my children away,''' said Cheri Patrick, a Durham family law attorney. ''They're not. ''If she goes where they go, they continue to share custody like they did before. I don't think she's lost anything other than the ability to stay [in Durham].'' Patrick, a North Carolina family law attorney for 12 years, said when news of Gordon's custody decision broke nationally, her email inbox filled up. Some of the messages arrived from her son's classmates at American University in Washington, D.C. The news provoked immediate sympathy. One friend wrote, ''Do you know anything about this? Can you help?'' ''As attorneys, we know there's always factors on both sides, and that it's not just one factor that did this,'' Patrick said. Among other findings, Gordon noted in her ruling that Giordano has made no effort to seek possible cancer treatments in the Chicago area. And Girodano is the parent least likely to encourage the children to have frequent contact with the other parent, the judge wrote. But Gordon did cite the possibly dire consequences of Giordano's Stage 4 breast cancer. ''Defendant's breast cancer and resulting treatment may and likely will, at some point, seriously impair her ability to be as available to the children as might be desired,'' the judge wrote. She also cited testimony from a forensic psychiatrist, Dr. Helen T. Brantley, who said children with a cancer-stricken parent need more contact with the non-ill parent. ''Children want a normal childhood, and it is not normal with an ill parent,'' the judge wrote. A judge shouldn't be forecasting a parent's future, said Mark E. Sullivan, a Raleigh family law attorney. ''You may only rule on the decision in front of you,'' Sullivan said. ''I don't think we should put a judge in a position of saying, 'You may be OK now, but you might not be OK a year from now.''' A parent should face an adverse custody ruling only if their illness directly affects their ability to care for her children, he said. ''If mom is disabled and can't drive the car ''You have to find a nexus between the condition complained of and the welfare of a child,'' Sullivan said. ''Situations where something is under control, that's not a nexus. ''If you can fix a very good supper, even if you're feeling lousy, there is not a nexus.'' Possible appeal: Giordano's likely appellant attorney says she suspects Gordon made her decision by assuming there was a nexus between Giordano's condition and her ability to care for her children. ''It's hard to imagine why [custody would change], other than her health condition, which, as I understand it, has never had any impact on her ability to care of her kids,'' said Alyscia Gray Ellis, a family law attorney in the Triangle area. ''Other than that, why suddenly a change of custody?'' Ellis said Wednesday that while she is not under contract as Giordano's appellant attorney, Giordano will likely hire her to handle the appeal of Gordon's decision. Ellis said she had spoken to Bill Cotter, the Durham attorney who represented Giordano over the four days of custody hearings in the case, but Cotter will probably not participate in the appeal. Cotter didn't return phone calls seeking comment. Laurel E. Solomon, the Durham attorney for Synder, the father, said, ''It's not appropriate for me to comment on this matter at this time.'' Gordon's opinion did highlight an instance where Giordano's illness negatively affected the children. In September 2010, Giordano was struck with pain so intense she couldn't walk. That evening, she went to the emergency room at Duke toting her kids. When doctors admitted her, the children had no place to go. To avoid having to call Child Protective Services, one of Giordano's daughters took the children home with her. ''Defendant describes this situation as being 'a great opportunity' for the children to get to know the doctor better,'' Gordon wrote. ''This lack of insight on Defendant's part is troubling to the court.'' While noting she hadn't yet read the trial transcript, Ellis said the incident was just a matter of poor timing, as a friend was supposed to have cared for the children that night. ''She's basically operating as a sole parent of two young kids and she's diagnosed with Stage 4 breast cancer,'' Ellis said. ''If that's the one incident anybody can point a finger to, she's doing pretty well.'' Ellis said Giordano has until May 24 to file a notice of appeal with the trial court, Ellis said. Entire contents copyrighted © 2011 by Dolan Media Company. All rights reserved. Reproduction in whole or in part without written permission is expressly forbidden. Published: Mon, May 30, 2011