Mental illnesses affect people going through divorce and child custody cases in very specific ways. If you are a parent whose spouse or significant other suffers from a mental illness then you very likely have questions about how a judge would feel in regard to these subjects. Is your spouse likely to lose visitation time due to their illness? What if your child doesn’t want to attend the visitation sessions that are prescribed? Do you have to force her to go?
Today’s blog post from the Law Office of Bryan Fagan will seek to answer those questions by detailing the role that a noncustodial parent’s having a mental illness can affect a child custody case in Texas.
Supervised visitation and mental illness among noncustodial parents
Make no mistake, supervised visitation is a possibility in your case if your child’s other parent suffers from a mental illness that has a material effect on their ability to consistently provide a stable and suitable environment for your child. Safety is the most important consideration for a judge to have in your child custody case and if one parent cannot prove to be capable of providing a safe environment then restrictions will go into place. Repeated instances of the failure to take seriously the need to protect a child can result in outright termination of parental rights in extremely limited scenarios.
Among the first considerations that a judge must pay to a parent a who suffers from a mental illness is what is the likelihood that the illness will either worsen or improve. If the illness is likely to improve then there may be less of a need to take steps in order to protect the wellbeing of the child for the long term. On the other hand, if it is likely that the mental health condition will worsen significantly over time then the judge would be justified in propping up visitation sessions with supervisors and other barriers between the child and possible harm.
Next, a judge would likely be concerned with what level of understanding does your child’s other parent have as far as their mental illness is concerned. For example, if he or she is aware of their condition, is taking steps to improve their mental health and is compliant with the advice of treating physicians then it is likely that the judge would believe that the mental health condition is not disabling. If your spouse does not take their medications as prescribed and is generally in denial about the significance of any mental health diagnoses, then that could be a warning sign that supervised visitation is required.
Ultimately the judge is not there as a safeguard against the world and your spouse, but as a safeguard between your spouse and your child. To the extent that your spouse's lack of understanding or acceptance that their mental health condition can have a potentially deleterious effect on their relationship with their child, a judge will likely step in to best ensure the safety and well-being of your son or daughter.
What questions would a judge ask himself about a party with a mental illness?
In order to gauge how significant mental illness is, here are some questions that I believe a judge will be asking himself while attempting to make decisions regarding the well-being of your child and what is in their best interests.
First, does the mental illness cause your spouse to act in harmful ways on a consistent basis or is the cause for concern such that he had a one-time problem that has since resolved itself? For example, many people who are bi-polar have problems with impulse control if they are not properly medicated. Did your spouse act impulsively on one occasion with your child present, but since that time has had a treatment regimen that involves being properly medicated? If so, your spouse is unlikely to be seen as a threat to your child’s well-being.
Next, many people suffer from mental illnesses that with proper treatment can be reduced in terms of their symptomology or eliminated completely. Proper medication and therapy are often a part of this process. If your spouse is seeking therapy, receiving medication and has not had problems with behavior in recent years it is possible that a continuation of this treatment pattern will result in an elimination of the symptoms of these mental health conditions from their daily lives.
On the other hand, it could be that the conditions that your spouse suffers from will become worse as time goes on for a myriad of reasons. It is the job of the judge to determine what is the more likely outcome for your spouse and to see whether or not he is capable of shouldering the burden of helping to raise your child in an unrestricted environment.
The age of your child is important as well. If your child is young then he likely does not understand what a mental illness is, not to mention how that mental illness could impact him or his safety. Older children are better equipped to understand the severity of a mental health issue suffered by their parent.
What happens if your opposing party is addicted to a substance like alcohol or drugs?
While joint custody may not be possible if you suffer from an addiction to drugs or alcohol, these factors alone are not typically sufficient to completely terminate parental rights. Many parents come into our office in fear that due to their crippling addictions to drugs or alcohol that their parental rights are in jeopardy. Unmitigated and unmanaged addictions certainly can lead to the termination of parental rights. However, these cases are not the norm.
It is certainly more common for a judge to restrict visitation between a parent and a child if addiction is an issue. Supervised visitation occurs in instances where the child’s needs to be protected from an unhealthy or outright dangerous environment. Drug and alcohol testing are common during the course of a family law case as well as in the years following the conclusion of a family law case.
The bottom line is that the addiction cannot have an effect on your ability to parent your child while he is in your possession. An altered mental state, an unsupervised child and a house full of drug paraphernalia is a bad combination and is enough to restrict visitation to supervised settings. Add in the possibility that people who share your addiction could also frequently be in your home and you have a recipe for a disaster.
How a judge will evaluate a party’s awareness of their mental illness
Judges are trained in how to identify persons with mental health issues, though it is typical that the opposing party will bring to the judge's attention any evidence of a mental illness that can or has already affected that person's relationship with their child. On top of being aware of the condition, the judge in your case will work to ensure that he or she understands how well you or your spouse are in acknowledgment of the seriousness of the mental illness.
A basic assessment can be given as far as how in control of your behavior are you. Can you keep your symptoms and behaviors in check if you are properly medicated? Some people display little to no ability to control themselves and their actions even when they are on medication. If you have been approved for Social Security Disability payments, for example, it is likely that your medical condition is such that you are virtually incapable of following instructions, relating to others on a consistent basis and have conditions and symptoms that affect your daily life in significant ways.
If you are noncompliant with your treatment regimen, what does this mean for your daily life? I have worked with many people who do not take their medicines because they make the person feel like a zombie or otherwise altered. They basically tell me that it is preferable to live as someone with a mental health condition, untreated, rather than be in compliance with the treatment regimen and feel altered beyond their control. It is difficult to reason with a judge who sees that you are not in compliance with your medication, however, for a reason such as this.
Most importantly, what effect has your mental illness had on your child? Is your older child frequently made to care for you on a consistent basis when you are going through problems associated with mental health? If you lack a sufficient support system to the extent that your child is having to help you administer medication or take an active role in your treatment, then this is something that the judge will likely want to know.
Younger children often react to their parents with fear if he or she observes you in a compromised mental state. How often does your child see you when you are engulfed in the throes of a panic attack or anxious state? Have you ever, even inadvertently, put your child in harm’s way, as a result of your mental illness?
Basic needs of your child must be met in order for you to maintain your parent-child relationship
Judges do not expect you to be symptom-free as a result of your family law case, but you must be able to display a basic level of competency when it comes to being able to raise your child. For example, if you display no ability to relate to or talk to your child on any level about their life then this is a surefire sign that your mental illness is untreated. In a way, a person with a mental illness reverts to a childlike state of mind where their whole life is wrapped around one thing. In this instance, it would be your mental health issue. Remember that no matter what you are going through, it is not more significant than the safety, development, and well-being of your child.
Namely, if your child blames him or herself for your struggles then this would indicate that an unrestricted visitation arrangement with you is not healthy for your child. Furthermore, your child's age and developmental level are integral to a judge's analysis as to what is appropriate for your child in terms of a visitation arrangement with you. Multiple instances of you putting your child in harm's way due to your mental illness will probably result in a less than a favorable decision regarding the immediate future of your visitation with your child.
Mental health conditions are serious, and a judge will expect you to acknowledge it
Humans can often time be prideful- I included. If a judge asks you about the state of your mental health and you attempt to play it off as being "not that serious" this will send up red flags all over the place for your judge. It is one thing to try and be tough, it is another to not take seriously the extent of your mental illness. Your child depends upon you to provide for him a safe environment to interact with you. If you cannot provide even this most basic of conditions, then a judge will likely award you severely restricted and/or supervised visitation.
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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
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