Serious mental health concerns can turn a relatively routine custody case into a drawn-out battle for parenting time. Find out what the courts can do when mental health and parenting time issues collide.
Not All Mental Health Diagnoses Threaten Parenting Time
Let’s be clear: just because one parent has been diagnosed with a mental illness or behavioral disorder does not mean he or she is unfit to have parenting time with the children. While the mental and physical health of parents are factors the courts consider when weighing the best interests of the children and determining custody and parenting time, diagnoses are only relevant when they negatively affect the party’s ability to be a parent.
Thousands of men and women successfully manage mental health diagnoses every day. And many of them make very good parents. When properly treated, parents suffering from anxiety or depression, behavioral disorders, or even substance abuse disorders can manage their symptoms and prevent them from negatively affecting their children.
Untreated Mental Illness Can Put Children at Risk
Unfortunately, there are also many parents that, for whatever reason, do not take the necessary steps to properly diagnose, treat, and manage their mental illness. When a parent struggles with a severe mental illness it may cause children to:
- “grow up to fast”, taking on age-inappropriate levels of responsibility for themselves or the household.
- blame themselves for their parents’ feelings or actions,
- experience high levels of anger, anxiety or guilt,
- feeling embarrassed or ashamed of their parents’ mental illness,
- become isolated or have trouble making friends,
- face problems at school,
- develop mental health or behavioral issues of their own, including drug use or poor social skills,
- face physical dangers related to their parents’ inability to provide adequate care.
In those cases, it is sometimes necessary for the healthy party to ask the court to step in and limit the children’s exposure to the risks presented by the other party’s mental health challenges.
Proving Mental Illness in Court
When mental illness becomes a factor in a family court custody battle, it is up to the healthy (or comparatively healthy) parent to prove both the existence of the disorder and the risk it poses to the minor children. However, a parent’s psychiatrist or therapist is generally not allowed to testify in court, since doing so would destroy doctor-patient confidentiality. Sometimes, the person’s medical records can be obtained in through discovery, or a co-parent may be willing to stipulate to the existence of the disorder to avoid having to testify about his or her mental illness in court. However, in many other cases, simply establishing that a mental illness exists can be a battle.
If you believe mental health will be a problem in your custody battle you should be ready to go through a screening yourself. In those cases, family court judges will often order both parties to submit to independent psychological evaluations by a separate mental health professional. That doctor is able to testify because both parties know he or she will do so going in. Often these psychological evaluations will also evaluate how each parent interacts with the minor children, allowing the court to evaluate whether the parties’ mental illnesses could negatively effect parenting or the kids’ own mental health.
Your own testimony, and the testimony of other friends and family, can also be used to show the risks your co-parent’s mental illness pose to your children. Often this testimony may include personal experiences when the other parent:
- Was incapacitated due to alcohol or drug use and unable to respond to the children’s needs
- Had emotional or violent outbursts in front of the children
- Entertained delusions that affected their choices about the children’s care (such as distrusting doctors’ diagnoses)
- Was unable to connect with children or provide them emotional support due to their own behavioral disorders
The precise form of the risks and the testimony will depend on the age of the children and the nature of your co-parent’s mental illness. The most credible testimony will be directly connected to their care, rather than simply reciting how the other party behaves generally.
Custom Parenting Time Orders Can Protect Children
Family court judges have a lot of discretion in creating custom parenting time orders designed to protect children while maintaining their relationship with both parents. Depending on the nature of the disorders involved, the court may order:
- Ongoing mental health treatment for parents
- Individual therapy for children (so that they have a safe space to report dangers)
- Family counseling or therapy for parents and children
- Supervised parenting time by a family member, close friend, or professional agency
- Limits on where and when parenting time takes place (such as only daytime sessions in a public place)
- Supervised or facilitated parenting time exchanges if the presence of the other parent is a trigger
- Reconciliation schedules or sessions when there has been a substantial interruption in parenting time
Often, these orders are progressive, establishing stages and benchmarks where parenting time will increase if the mentally ill parent is able to demonstrate the capacity to move on to the next level.
Modifying Parenting Time Orders
Treating mental illness is almost never a straight path to wellness. Setbacks and adjustments in medication can cause a person to become less able to be a parent for a time. In other cases, a person exceeds his or her expected prognosis and is able to take on more parenting responsibility than the court expected. Whenever mental health plays a significant role in a custody and parenting time case, there is a good chance the parties will need to return to court to modify parenting time orders to better align with the ill parent’s condition. The court may also schedule review hearings to closely monitor the progress of these parents and allow for expanded parenting time if and when they are ready to take a more active role as a parent.
Establishing and adjusting custody and parenting time orders when parents suffer from mental illness takes patience and professional assistance from compassionate attorneys and therapists. If you believe that mental health is negatively affecting your co-parent, or your children, speak to an attorney to discuss your options and protect your children.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps parents establish and modify custody orders in the best interests of their children. If you are dealing with custody challenges, contact Schmidt & Long today to schedule a consultation.