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Mental Illness in Child Custody Cases

When I am doing an initial consultation about child custody, I often ask if the other parent has any mental health issues.  I do this because I frequently see cases where mental illness has played a role in the family’s problems.  The two mental health conditions that come up the most are bipolar disorder and borderline personality disorder.

In the case of bipolar disease, the impact is different depending on which parent has it.  Because of the general custom of giving custody to the mother, the bipolar father is usually seeking visitation.  Often, the mother will have concerns because of unpredictable behavior, terrible judgment and, frequently, substance abuse.  

Where the mother is the bipolar parent, she usually has primary physical custody and the father is trying to get the kids out of a bad situation.   If it’s the father, the conflict is most often about restricting his visitation.  The problem is that many people with bipolar disorder and their families don’t know that is the reason for the person’s difficult behavior.  

I had one case where it was quite clear to me the mother had bipolar disorder.  She was moving the children so often it was unusual for them to be in the same school for much more than a month.  It wasn’t a case of poverty.   It was all due to the impulsiveness that the illness caused her to exhibit.  She had put the children in very dicey living situations including once in the home of a sex offender.  

The father was unable to care for the children and no other relatives were in a position to take custody.  So these two girls, one of whom had a medical condition, were left in this very bad situation.   I heard from one of the grandparents several years later and the situation was still just as it had been when I was involved.

In court it can be difficult to prove a person has a mental health problem unless the person admits it.  You have to hire an expert.   The expert will cost $3,000 to $7,000 and you cannot count on them confirming the mental illness.  I have felt that the rules should be looser so that the judges could consider whether the criteria for the illness appear to be met and then require the person to pay at least part of the cost of a psychological assessment.

I also believe the judges should be given at least some education about common mental health problems.  Many people think of a homeless schizophrenic when they think of mental illness.  But there are many other conditions that affect a person’s ability to be a good parent.  The lawyers they appoint to serve as guardians ad litem should also be required to have some knowledge of mental health issues before they can be appointed to protect the interests of children.

If you are a parent in the situation of battling for custody of children because the other parent has a mental illness, the most helpful thing to give your attorney is photos of the medicine bottles.   From the label you can learn the name of the pharmacy and the prescribing physician.  Your lawyer can then subpoena the records and learn the diagnosis.  Then, even if you cannot afford an expert, you can ask the person about it when they testify.  If you are representing yourself in a Juvenile Court case, you can ask the court to issue a subpoena for you.

For parents who have mental illness, the key to success in the courtroom is a track record of compliance with the medication and counseling prescribed by your mental health professional.  Be candid about the issue and be realistic about how it affects your ability to be a good parent.   Candor and realism will help you to win the judge’s respect.  If you feel your condition is deteriorating, get the other parent to pick up the children.  The last thing you need is to do something out of bounds while the children are with you.  

One less serious mental health condition that often comes up is borderline personality disorder.  This illness is much harder to prove and much hard to treat.  But it can strongly affect families.

The two characteristics I see most often are unstable relationships and a tendency to get angry out of proportion to the situation.  I have had many cases where the mother has had a long series of breakups resulting in the children being repeatedly uprooted and moved because she has broken off yet another relationship.  Although men can also suffer from this disorder, I have not encountered it in my cases, probably because men are less often given primary physical custody.

About the Author

Robert Jeffries
Robert Jeffries