Mental Illness and Your Custody Case: Part II


Carrie H. Westbrook, Esq., Contributing Author

The presence of a party’s mental illness in a child custody case is a significant and fairly common issue. It not only has the potential to impact the outcome of the case, but to also increase the costs — sometimes dramatically.

Once you have obtained a diagnosis that is officially recognized by the court, you need to apply the evidence properly to have it effectively impact custody. Ideally, you want the mental health professional’s conclusions as early as possible. However, even later in the case, the diagnosis can still play an important role in setting up future protections.

Utilize the diagnosis properly once it is obtained

A diagnosis of mental illness in a custody case can be utilized in several ways. If the diagnosis is obtained early in the case, as would be recommended, it can be factored into preliminary or temporary orders. These are  obtained at the beginning of the case and set forth the rights, duties and responsibilities of each parent while the case is pending. Obtaining a court ruling at the outset of the case that grants you primary custodian of the children sets the tone for the rest of the case.

The earlier in the case you can get an official diagnosis recognized by the courts, the earlier it can be applied to temporary custody orders.

While most states’ laws provide that temporary orders are not binding on the court when it comes to the final resolution, they typically play some role in what the court ultimately decides. With the help of a mental health professional, you can sometimes acquire temporary orders that include various protective provisions for the child in relation to the mentally ill parent.

These orders may also include mandatory treatment, therapy and counseling for the mentally ill parent; requirements to strictly follow doctor’s recommendations as to the frequency, dosage and duration of specific prescription medications; injunctions against using alcohol or drugs and other such provisions. Once they are in place, the court often hesitates to remove these protections in final or permanent orders.

Even if the mental illness diagnosis is acquired later in the case, however, there are still opportunities to utilize it. Many cases settle informally or in mediation prior to going to a hearing or trial. Having the doctor’s report, medical records or treatment notes during settlement negotiations can prompt the other side to come to agreements regarding the children. This can save substantial attorney’s fees as compared to battling things out in hearing or trial, yet will still result in enforceable orders that offer protection for the children of mentally ill parents.

Also, proof of a diagnosis of mental illness, even if it does not result in a final settlement of all the issues, can be used to force an interim agreement that the mentally ill parent seek treatment or otherwise take steps to address their illness as a means of gaining custody or visitation at a later date.

Ensure the diagnosis is specifically referenced in the final order or decree

At the end of all custody cases, there will be some sort of final order or final decree signed by the court that dictates to both parents their rights, duties and obligations regarding children moving forward. It is crucial to include the specific diagnosis in the final order and to ensure that there are provisions setting forth ongoing treatment requirements, compliance with prescription medication usage or any other relevant issues.

This becomes particularly important if you find yourself back in court at a later date to modify the child custody order or to enforce its provisions, which is quite common in child custody cases. If there is nothing specific in the order about the mental illness or how issues with the illness are to be addressed, the order can be difficult to enforce.

Additionally, sometimes you may not be back in court until several months or years later and the judge could be completely different. If there is nothing in the order specifically mentioning a diagnosis of mental illness, a judge who was not initially involved in the case (or who has long since forgotten the facts) will have no way of knowing that mental illness was an issue.

It is crucial to have provisions in your final decree that regulate what must be done for recognized mental illness. If custody issues come up in the future, the court may not have your prior evidence on file, and it may not be taken into account.

Even if psychological testing was conducted in the initial case, depositions were taken and medical records were acquired, most of those items would not necessarily be in the court’s file. In many states, such items acquired during the course of litigation are never filed with the court. While the items may be introduced as exhibits in a trial or hearing, even then some courts do not maintain exhibits in the court file. Further, if you settled your case through mediation without hearing, there is even a lesser chance that you would find any proof of mental illness in the court’s file later.

However, if the court makes a finding in the final order or decree that a parent has a mental illness and sets forth specific guidelines, you will not be in the unfortunate position of having to re-prove these facts down the road. Once the court makes the finding and the order becomes final (which in most states occurs 30-45 days after the judgment is entered), it cannot be overturned or “lost” at some later date. Similarly, a final order or decree will remain in full force and effect until it is modified by a subsequent court order or the order lapses under its own terms (as in the case of child custody provisions, which usually cease to apply once the child becomes a legal adult).

In short, you never want to assume the original evidence you relied upon in the initial case will be available to the court months or years down the road. It is always best to ensure that the findings and provisions regarding a mental illness diagnosis are spelled out in the final order or decree.

Legal counsel is vital when mental illness is present in your custody case

Despite the devastating effects mental illness can have on cases involving children, all hope is not lost. Obtaining a formal diagnosis of a parent’s mental illness early in your case, acquiring the appropriate mental health professional to use as an expert, utilizing the diagnosis properly during litigation or settlement negotiations and ensuring that the final decree specifically references the diagnosis represent only a sampling of the ways you can increase your chances of success in such a case.

Consulting the appropriate legal counsel is the first step in preserving your child custody rights when the other parent is mentally ill. The proper attorney can guide you through the process and address the nuances and unique factors that apply to your individual situation.

Editor’s Note: This is the conclusion of a two-part series discussing how to navigate a child custody case when your spouse suffers from a mental illness.

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