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Practice Tip: Parental Illness and Custody

By Robert A. Epstein
January 30, 2014

To what extent can a parent's illness can have a bearing on a pending custody decision or existing custody arrangement? Often, the illness is of a mental nature, where one parent will argue that the other parent is unfit to care for the children because of that parent's history of mental illness, psychological/psychiatric treatment and/or use of prescription medications to treat such an illness (or lack thereof, which also often comes into the equation), and more. What happens, however, when the illness is physical in nature?

For instance, what if one parent is diagnosed with cancer? That was the issue presented in the newly published trial court decision, A.W. v. T.D., in New Jersey. The most important question that the court will face in addressing the issue is whether ' under the specific facts and circumstances at issue ' the diagnosed parent can still appropriately care for the child's health, safety and welfare. In other words, are the best interests of the child still protected by the existing arrangement? If not, then a change may be necessary, through no fault of the ill parent.

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