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Mental Health and Child Custody

Any custody dispute between the parents will ultimately be decided based on what is in the child’s best interests. Many different factors comprise what is in a child’s best interests. The mental health of the parents is one of the factors that will be considered by the courts. With nearly 20% of the adults in the United States suffering from some form of mental illness, the issue of mental health and its impact on child custody is a common one.

An important preliminary inquiry is the severity of the mental illness. Logically, mild depression will have much less of an impact on a child custody determination than, say, schizophrenia. In some cases it may be necessary to have expert testimony to explain a parent’s diagnosis to the court. The expert witness can provide essential insight to a parent’s ability to adequately supervise the children. A parent’s history of compliance with the recommendations and prescriptions of his or her medical providers is also an important piece of the best interest puzzle.

If a parent has been repeatedly prescribed medication to help with the mental health condition but has refused to regularly follow the regimen, this can weigh heavily in a court’s best interests decision. A court is likely to give greater weight to a mental health professional’s recommendation that the medication is required than to a parent’s opinion that he or she does not want to take or does not need the medicine.

Mental health records, like medical records, are covered by a large variety of confidentiality laws. An attorney in a family law proceeding will be able to get copies of any relevant medical records through a process called “discovery.”  Sometimes the lawyer will get the records directly from the other parent, and sometimes the records will come from the mental health facility. Either way, the lawyer will almost certainly be able to obtain copies of records disclosing diagnoses and historical adherence to medication regimens.

A parent suffering from mental illness may feel that the mental illness is irrelevant to child custody proceedings and try to cover up the severity or existence of the problem. This is a mistake for several reasons. The most obvious is because lying to the court is perjury and can cause criminal penalties. In addition, failing to disclose the mental illness will typically give the court more cause for concern than if the parent would have been honest about the condition.

The existence of a mental health condition in and of itself is not a reason for a court to curtail or deny visitation. Many factors weigh into a court’s decision as to whether the mental health condition is a problem. Ultimately, if the illness will not adversely affect the children, then the illness will not be a barrier to visitation or custody.

We are highly experienced in family law matters and have handled cases involving mental illness in the past. Call us today at (253) 272-9459 to talk about your case and how mental health will play a role.

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