In Wisconsin, a judge who makes child custody decisions needs to keep the best interests of the child a primary consideration. Broadly defined, a child’s best interests include maintaining his or her relationships with parents, siblings, and other family members as well as the mental and physical health of the parties. A judge can consider physical health of a parent, but a recent case from another state illustrates how controversial this consideration can be.

A judge presiding over a divorce case has ruled against giving a mother afflicted with stage four breast cancer custody of her children because it is unknown if she will recover from the disease. The judge awarded custody of the two children to their father and has stated that the children, ages 5 and 11, must move from their mother’s home by June 17.

The woman and her ex-husband will share custody. However, due to the fact she needed to move to another town for her cancer treatment, she can only invoke the shared custody on weekends and holidays.

The judge’s decision has caused concern with cancer experts and family law attorneys. Some experts on the matter reported they believe that making custody decisions based on protecting a child from an ill parent could have repercussions on future cases.

Experts on both sides of the argument spoke out on reasons for being in favor or against the judge’s decision. A psychologist, in favor of the judge’s ruling, said that children do better with contact with a non-ill parent and in a world free of cancer. A doctor on the other side of the argument said that although this may be true, not seeing the ill parent could also harm the children because children need honest answers about why the other parent isn’t around.

An appeal has been filed to allow the children to stay with their mother.

ABC News, “Judge Cites Mom’s Breast Cancer in Denying Custody of Children,” 5/10/2011