Unfortunately, a reality for many families relates to mental health challenges. When a parent is suffering from a mental health issue that creates a range of challenges for the family in terms of being able to spend time with one another, determining the extent of the mental health issue and the support system available will ultimately tell you more about your conservatorship role with your children. Suffering from a mental health issue does not need to be the end of your relationship with your child.
However, it does represent a need for you to take seriously your mental health and that of your co-parent. In today’s blog post from the Law Office of Bryan Fagan, we are going to spend the time discussing the ways that possession orders can be impacted by the mental health problems of a parent. The information shared in today’s blog post can be applied to many family law cases in Texas. That said, the best way for you to learn more about your circumstances speak to an attorney directly.
The attorneys with the Law Office of Bryan Fagan offer convenient methods for you to conduct a consultation. Our attorneys can meet with you for a free-of-charge consultation in person, over the phone, and via video. No matter what your preferences are or where you are located our attorneys are here for you. We have offices in every major metropolitan area in Texas. This means that one of our attorneys is always close by to meet with you. Facing a mental health challenge means having a plan and well-defined goals. An attorney from our office can help you tremendously in this regard.
The best interests of the child’s standard
In any Texas family law case, what matters the most is the best interests of your child. A quart works that possession, visitation, and child support issues through this lens. There are factors related to your child’s health, well-being, and future development that go along with this analysis. It can be difficult to anticipate the needs of your child in the future. For that reason, a judge is also able to use their experience and knowledge when making determinations about the best interests of your child.
The best interests of the child standard is a sensible yet sometimes confusing method of determining issues related to child custody. It is sensible because parents are always one to look out for the needs of their children. However, sometimes the needs of your children can be confused with other interests. Notably, sometimes a parent can confuse their own best interests with those of their children. Specifically, as we talk about issues having to do with mental health your own goals for your children may conflict with what is in their best interests.
The best interests of the child standard forces parents to look at a case from their child’s perspective first. Courts do want parents to have ongoing and meaningful relationships with their children. However, that desire does not mean that the child’s safety or well-being will be jeopardized. Rather, being able to ensure the best interest of your child means addressing any safety issues in your life. Those safety issues may, unfortunately, relate to mental health problems. Much of the time, mental health challenges must be addressed directly.
Considering your mental health on a practical level
Currently, so much is said about mental health. We hear about people taking breaks for their mental health. Certain relationships are termed as toxic or harmful because of mental health reasons. Watching any Reality Television show would lead you to believe that most people in our country have a mental health issue of some sort. While I am certainly not able to speak on this subject specifically, I can tell you from experience that family law attorneys with the Law Office of Bryan Fagan are experienced at helping parents who have diagnosed mental health issues.
This should tell you that you are not alone if you are dealing with a mental health challenge. There are certain stigmas which are attached to mental health issues. This is true despite mental health being a much more well-known issue in the lives of many people in 2024. The net result of this is that parents can sometimes feel like they are not in a position where they can seek help for the problems that they suffer from.
This can lead to exacerbated issues in the family. In short, you may make a bad situation even worse if you do not seek care. It can be difficult to identify mental health issues. On top of that, it can be even more challenging to seek care for yourself or to even find it. That is where leaning on community resources, your health insurance provider and your support system can help. If you feel like you don’t have the energy to seek help there are almost always people to help. Most of the time, however, you need to take the first step and ask for help.
Family law benefits of seeking help for mental health issues
Not only will seeking mental health care help you overall in terms of your well-being, but it will also help your family law case. In many family law cases, the mental health of a parent is not debated. For instance, suppose that you are someone who has dealt with issues like anxiety and depression for many years. Because of those noted mental health issues a major concern of yours has been what happens if you go through a divorce. People have told you that because of those mental health issues you stand no chance of being named as a conservator of your children. Practically speaking, that means you would lose decision-making rights concerning your kids.
While it is impossible to say the exact impact of mental health issues in your child custody case, indeed, mental health problems will likely play a role. Again, courts want to ensure the safety and well-being of your children. At the forefront of a quartz mind will be your child’s safety. Seeking therapy or treatment for your mental health challenge shows a court that you are committed to bettering yourself. By bettering yourself you provide your child with take greater opportunity to live life safely.
Judge yourself honestly
You can evaluate your child custody case before it begins by looking at your life. Specifically, looking at your life from the perspective of your home environment and the role you have played in the life of your child to date. If you have played a primary caretaking role in the life of your child up to this point, then there is little reason to think that you will not be able to do so in the future. Additionally, if your home environment is conducive to raising a child then, likewise, it is possible that the mental health challenges you suffer from will not play a major role in the case.
Possession orders in Texas child custody cases
Two presumptions in Texas child custody cases interact with one another in significant ways. First is the presumption that it is in the best interest of your child for him or her to have a meaningful and close relationship with both you and your co-parent. Children can gain positive attributes from both parents when given the opportunity. So often children struggle because they are exposed only to one parent. In a child custody case, absent evidence to the contrary, it is presumed that both you and your co-parent should have a meaningful role in the life of your child moving forward.
This presumption relates to a second presumption in favor of joint managing conservatorships. As a joint managing conservator of your child, you share decision-making authority with your co-parent. For the most part, joint managing conservators must make decisions related to their child together as a team. The idea that one parent almost always carries most of the decision-making authority after a family law case is false. Even if one parent has the child more than another that does not mean that the non-primary conservator lacks decision-making authority.
However, both presumptions can be rebutted. This means that it is possible to take relevant evidence in a case and then show that the presumption should not apply. Specific to the subject of mental health, it could be that your mental health struggles successfully rebut this presumption in favor of joint managing conservatorships. How it would work out in your case depends upon the factors we have discussed in this blog post. Specifically, how well are you able to care for yourself and your child?
Look to your parenting past to gain a preview of your child custody case
Regardless of whether you have a mental health issue or not the vast majority of family law cases are determined by looking at the parties and their history as parents. For instance, consider that when the issue of primary conservatorship arises in a child custody case a judge would usually look to who has played that role previously. This means that if you have served as your child’s primary caretaker then you stand a very good chance of remaining in that role moving forward.
Conversely, if your mental health condition has limited your ability to parent then primary conservatorship is likely out of reach in this child custody case. However, that does not mean that you will forever be locked out of primary conservatorship consideration. Certainly, the mental health of individuals can improve over time. If you have been seeking therapy or counseling and are taking medication, then your mental health can improve. At that point, you can readdress the issues of primary conservatorship.
The usual method of addressing primary conservatorship down the road is through a modification. In a custody modification, a court considers whether a material and substantial change has occurred to you, your co-parent, or your child since the last time you were in court. If it is found that a material and substantial change in circumstances has occurred, then the first prong of this test is met. The second prong would be whether the proposed modification is in the best interests of your child. This means that a court could find that a material and substantial change has occurred but that the proposed change is still not in the best interest of the child.
Stair-step visitation orders
Put yourself in the following position. Suppose that you are a mother who is diagnosed as having depression and anxiety. As a result of these conditions, you have diligently addressed your symptoms with several different interventions. For instance, you have received counseling and therapy from a mental health counselor. You see this person consistently, and I’ve experienced tangible results. On top of that, your doctor has prescribed you medications and I have successfully dealt with multiple symptoms related to depression and anxiety.
In short, your mental health is much stronger now than it was in years past. Unfortunately, your marriage has struggled despite your efforts to obtain mental health counseling. As a result, a divorce is upcoming. The main concern you have heading into the case is your ability to play a prominent role in the life of your child. Although you have not been the primary caretaker for your children you would still like to be a part of their life moving forward. You feel like your mental health has improved too and in future years you may be able to take on even more responsibility. What can you do in a situation like this?
A stair-step visitation order may be just what you need to address this type of circumstance. In a stair-step visitation order you are provided with limited possession and access to your children now. However, because of your improved mental health and anticipated future abilities to parent your child, you are provided with greater possession and access over time. This gradual increase in possession and access is referred to as stair-step visitation. Being able to work with an experienced attorney can assist you in negotiating these increased rates over time.
The power of negotiation
Contrary to what many people believe, family law cases are usually not decided by courts. Rather, in most family law cases the parties themselves ultimately determine the issues themselves. This is done through informal and formal negotiation. Informal negotiation refers to either direct communication between the parties or negotiation through a council. Formal settlement negotiations occur through mediation.
What negotiation allows you and your co-parent to do is assess circumstances together as a team. Even if the two of you do not agree on much now that does not mean that you are unable to work together at all. Once parents come to realize that the best interests of the children are what matters most this can frequently bring them together. You and your spouse or co-parent may have your differences. The two of you may view parenting responsibilities through different lenses. However, by setting aside your own once and attending to the needs of your children you can address problems quite well.
The alternative is to have a judge render a decision for you. Even well-meaning and experienced judges do not know your family as well as you and your co-parent. Specific to mental health challenges, both of you understand the strengths and weaknesses of your family. Subtleties and finer points can be lost during a long hearing or trial. Attending to the needs of your family is usually better addressed through settlement negotiation. Middle ground may be easier to find than you would have anticipated.
Final thoughts on mental health challenges in child custody cases
A child custody case does not need to be something that intimidates you. While a child custody case is important to the future of your child there are resources to help you. Leaning on your support system and mental health coaches is one effective way to do this. Another is to seek out an experienced family law council. Thank you for joining us today on the blog for the Law Office of Bryan Fagan.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
