Mental illness will impact child custody agreements

Determining child custody is a major concern whenever parents divorce and may even lead to litigation. In determining custody, the judge will weigh several factors to arrive at a decision that he or she regards as the best interests of the children. Because May is Mental Health Month, we thought it would be helpful to share some insight into the court’s thinking on awarding custody when a parent is wrestling with mental illness.

The courts generally favor joint custody because family experts believe that it is in the best interests of the children to have both parents involved. It gets more complicated if a parent is dealing with a bipolar disorder, depression or addiction. However, it is a mistake to try and keep this health issue a secret until after the custody and parenting plan is finalized.

Getting a diagnosis

A diagnosis can actually help one’s case. By proactively seeking counseling or treatment, the judge will see that the parent is taking positive steps towards treating the illness and finding solutions. Once this happens, it is important to share this information with one’s lawyer and the court. When doing this, they should address the following questions:

  • Are the children in any danger?
  • What are the protocols to treat this illness?
  • Are there any side-effects to the treatment?

Mental illness does not preclude custody

It is a mistake on either parent’s side to assume mental illness precludes custody. The court will likely issue a court order regarding obligations for evaluation or treatment, but judges are often inclined to give the benefit of the doubt.

Nevertheless, both sides need to be honest about the ability of the ill parent to fulfill their duties while getting help. The ill parent needs to be honest about their capabilities while addressing the matter, and the other parent should resist the urge to punish the co-parent, which could make things worse.

With the heightened awareness of mental health these days, it is becoming more common for experienced family law attorneys to address mental health issues from both sides. Often, they can provide insight on how to best address the matter for the benefit of the entire family.

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Keith B. Schulefand, Esq.
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