Sympathy and empathy are wonderful and admirable qualities, but they can mess up ethics alarms but good, causing them to ring out with gusto when perhaps they shouldn’t be set off at all.

This, I’m sorry to say, is what seems to be going on with the public and the media in the wake of a North Carolina judge denying Alaina Giordano primary custody of her two children,  in part because Giordano has Stage IV breast cancer, and in part because she is unemployed. Giordano is upset and nobody can blame her for that. She has also started a website exhorting readers to “Say NO! to CANCER discrimination!” There is a Facebook page (of course) rallying support for her, and it already has over 14,000 fans. An online petition to the governor called “Do Not Allow NC Judge To Take Alaina Giordano’s Children Just Because She Has Cancer ” has more than 75,000 signers.

Yet there is nothing inherently unethical, illogical or unfair about family law Judge Nancy E. Gordon awarding custody of 11-year-old Sofia and 5-year-old Bud to their father, who lives and works in Chicago, rather than to their mother, who lives in Durham, and has breast cancer that is most likely terminal. The judge’s sole criteria in awarding custody in such cases is the welfare of the children. Sympathy for the mother is irrelevant, and should be. Judge Gordon’s assessment that Alaina’s ability to care for the children is doubtful because “the course of her disease is unknown,” and that “children who have a parent with cancer need more contact with the non-ill parent” is a reasonable resolution of the dispute.

No doubt about it, this is a devastating and cruel blow to a woman who has more than enough misfortune already. The judge suggested that she could move to Chicago to be near the children, and that this was more reasonable than requiring her husband to give up his job to move back to Durham where, he says, there are no jobs. This, in turn, as being spun as the judge favoring the husband’s need for a job over Alaina’s  treatment which is continuing in North Carolina. I won’t argue that when assessed from her point of view, the decision isn’t harsh. It is harsh.

Nor will I argue that there shouldn’t have been a way to accommodate both parents and the children that took into consideration Alaina’s health crisis. Personally, I would nor pursue a custody battle while my ex-spouse was battling cancer, unless I was convinced that the children were in real peril. Divorce-related litigation is often ugly, and the ugliness is seldom one-sided. Could Kane Snyder, the father, have been more compassionate? Quite possibly. That isn’t relevant to the judge’s decision either. Maybe he has been a completely heartless bastard throughout. The question is, though, which parent is better able to care for the kids.

NBC Chicago spoke with family law attorney Michael Cornacchia, who was critical of the decision. “I’ve never heard of a mother losing children because of poor health or being sick,” he said. “What the court has done is expanded the traditional understanding of what unfitness is.” If true, I think that traditional understanding was due for expansion, and I think Cornacchia is using too a narrow definition of “sick.”  Children have been removed because of a mother’s drug addiction or alcoholism, both of which are categorized as diseases by the American Medical Association, and neither of which is terminal as frequently as Stage IV cancer. Though it is politically incorrect to say so when cancer is involved, who could honestly argue that the fact that a parent is seriously ill shouldn’t be considered in a custody ruling?
I have no idea, having never seen the either parent or all the evidence at issue, whether Judge Gordon’s ruling is correct or not. I do know that the mother’s probably terminal cancer and unemployment are legitimate factors for the judge to weigh, and that the fact that the ruling seems unfair to  Alaina Giordano  does not mean it still isn’t in the best interests of the children. In a custody battle, that, and not which parent needs the children more, or has a worse life, or is more sympathetic, or who deserves compassion, has to take precedence. It is not “cancer discrimination” for the judge to come to the conclusion that all else being equal, a healthy parent with a job is better able to care for two minor children than a terminally ill parent who is unemployed.

Sympathy may be setting off those ethics alarms, but there’s nothing unethical here.