Mental Illness and Your Custody Case: Part I

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.

Mental illnesses are notoriously tricky to deal with. Each mental illness carries with it certain common characteristics, but also involves attributes unique to the individual, preventing a “one-size fits all” approach to addressing the problem. However, most court orders in child custody cases are general, rather than being tailored to address the specific challenges and issues that a mentally ill parent can present. Here are some precautions you will want to consider if mental illness is involved with your custody battle. 

Secure a formal mental illness diagnosis early

It is extremely important to alert your attorney as early as possible in your case as to any mental illness from which you believe your spouse to suffer, even if you only suspect it. Attorneys experienced in domestic relations cases can assist you in preparing your custody case to address the challenges specific to a mentally ill spouse.

Early diagnosis is the key to success in child custody cases involving a mentally ill spouse. Even if your spouse has admitted to you that she has been diagnosed with a specific mental illness in the past or you have witnessed her taking prescription medications specific to a certain mental illness, it is still imperative to obtain an official diagnosis from a properly qualified mental health professional.

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Even if you have witnessed your spouse taking medication for the treatment of a mental illness in the past, the court will usually still require proof from a qualified mental health professional.

As a lay person, most states’ rules of evidence do not permit you to testify as to what mental illness you believe your spouse may have. While you can testify, generally, about such things as your spouse’s behavior or what medications you have witnessed her taking, doing so will not necessarily result in the court recognizing (in the legal sense) that a specific mental illness exists. To obtain a diagnosis of mental illness, there are two main alternatives:

  1. If you know of a doctor who has treated and diagnosed your spouse for her particular mental illness in the past (or if you can ask the right questions during the discovery process to find out this information), you can subpoena the treatment records and notes of that doctor, subpoena the doctor to testify about the treatment and diagnosis at hearing, trial or deposition or utilize similar tools during the litigation process to secure the diagnosis for use in court.
  2. Alternatively, if you cannot locate a doctor who has rendered a diagnosis or if your spouse has never been diagnosed, most states permit you to file a motion for psychological evaluation to have your spouse tested and formally diagnosed.

Cordell & Cordell understands the concerns men face during divorce.

Certainly, there are costs involved in subpoenaing the doctor and/or his medical records, but generally, the cost of a psychological evaluation is higher. Most psychologists or psychiatrists who conduct such evaluations in the context of divorce and custody cases charge retainers up front before they will undertake any work. The cost of the retainers varies, but is usually in the range of $1,500-$5,000 per evaluation.

To make matters worse, many courts take the approach that if they are going to order one party to be evaluated, they may as well order both parties (and sometimes the children) to be evaluated. Obviously, this approach will significantly increase the costs of your case due to the number of evaluations for which you will have to pay. Accordingly, the best course is to discuss with your attorney the cost versus the benefit of psychological testing so you can make the best decision for your particular case.

Acquire the right mental health professional

Having the right mental health professional to make the diagnosis and persuade the court of that diagnosis is just as important as securing the diagnosis itself. Just because a person is in the mental health field does not always mean he or she is necessarily qualified to diagnose mental illnesses.

For example, licensed professional counselors and social workers, while they usually have general training and experience regarding mental health issues, are not usually qualified to test for or diagnose mental illnesses. Further, even if the mental health professional is properly qualified, unless their opinions stand up in court through vigorous cross-examination and scrutiny, they will be utterly meaningless.

Usually, a psychologist or psychiatrist is the preferred mental health professional to conduct the diagnosis. Most courts recognize a licensed psychologist or psychiatrist as an expert in the field of testing and diagnosis of mental illnesses because of the professional’s credentials alone. However, it is important to consult your attorney about the particular jurisdiction in which your case lies and as to the particular judge or judges who may hear the issues in your case.

As many attorneys know, even judges who preside in the same courthouse can have drastically different opinions about mental health professionals. Some judges prefer a psychologist or psychiatrist who primarily works in private practice as opposed to those who spend most of their time conducting psychological evaluations in the context of court proceedings. Alternatively, other judges are more comfortable with seeing the same psychologist or psychiatrist in numerous child custody cases because they have come to trust the expert and to rely upon the expert’s opinions.

Editor’s Note: This is the first 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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