In yesterday's blog post from the Law Office of Bryan Fagan, we introduced the topic of mental health problems and their impact on divorces in Texas. I wanted to make sure that you were aware that while mental health problems are certainly important to divorces in Texas they are not necessarily a bar to you or your spouse having an ongoing relationship with your children after the divorce is over with. If you suffer from mental health problems the best thing that you can do for yourself is to get in therapy or counseling sessions, stay medicated and follow the advice of the treating professionals who are working with you.
Parents with mental health difficulties often face abnormal or unorthodox visitation schedules with their children at least initially but with improvements in their condition and behavior will often time be able to gain more time with their children as far as a visitation schedule is concerned. The major issue that a judge would take with your being able to have unrestricted access and possession of your children while in the throes of addiction or something similar would be that you may not be able to protect the safety of your children to a large extent. If a judge is basing all decisions in regard to your children based upon what is in their best interests then allowing a person (even their parent) to have unfettered access to them would appear to be contrary to those objectives.
The question we have to ask ourselves today is- what happens if your mental health conditions do not improve? What if the symptoms remain as present as ever and a combination of therapy and medication do not cause you to feel better? Are you at risk of having your parental rights terminated completely as a result?
What conditions must be apparent for a judge to terminate a person’s parental rights in Texas?
While the circumstances are relatively limited where a judge could potentially terminate your parental rights, those circumstances do exist and need to be discussed. It is the last resort for a judge to seek to terminate your parental rights. The default assumption that a judge must make in a child custody or divorce case is that it is in your children's best interests to have an ongoing and continuous relationship with you, their parent. Joint custody, where you and your spouse share parenting duties, rights and time in a fairly even fashion, is what the default setting that courts will impose upon your case absent evidence as to why this would not be appropriate.
That is where evidence of mental health problems or substance abuse issues enter into the equation. If a judge becomes aware of evidence that shows you are suffering from mental health problems then that could have a significant impact on your ability to have a relationship with your children at least in the present time. I cannot emphasize enough how a court will overlook a lot of issues but the potential safety and well being of your child is not one of them.
If there are no alternatives available to the judge and it is shown that your child’s best interests are harmed by allowing you to have any continuing contact or relationship with your child then you can expect to have termination proceedings initiated. Even if the issues are not completely your fault and even if you have sought treatment and have had some degree of success in addressing these problems previously it is not uncommon to see a parent’s parental rights terminated. I would point out, however, that there needs to be a history of problems in the parenting relationship where incidents have occurred that demonstrate your inability to keep your child out of harm’s way.
To start off with, your having contact with your child must make it impossible for your child to be emotional, physically and mentally provided for. If you are exposing your child to drug use, bringing people into your home who pose a safety risk for your children or are demonstrating harmful behavior that your children could mimic then these would be good reasons for a judge to consider terminating your parental rights in regard to.
Is your mental health condition permanent or temporary?
Next, a court would consider whether or not the mental health problem that you are suffering from is a temporary or permanent condition. I have worked with clients in the past who have had successful treatment regimens and appropriate medicating practices which have resulted in that person being cured of their mental health problems. Still, other people are dealt a hand that will see them suffer for the rest of their lives with whatever mental health challenges he or she is dealing with.
If yours is a temporary mental health condition for which you are seeking treatment and have shown improvements in handling then it is very unlikely that a judge would terminate your parental rights at this time. That is not to say that in the future a termination suit could not be brought by your ex-spouse that resulted in a re-evaluation, but at the present time, it would be unlikely that a judge would not allow you to maintain your parental rights while allowing you an opportunity to improve your mental health.
Has your child ever been removed from your care before?
If during your marriage your child had to be removed from your home due to safety concerns presented in relation to your mental health problems then this can be used as part of the rationale a judge may utilize to terminate your parental rights. It is a difficult question to ask yourself: would you ask your spouse to leave the house in order to keep your children? Many spouses are forced to lose temporary custody of their children because they refuse to do so. You and your spouse may have been faced with this question due to your own mental health conditions. If you remained in the home and Child Protective Services (CPS) had to remove your children then this can be used against you in an evaluation regarding the potential termination of your parental rights.
Continuous attempts at treatment may not be enough to help you keep your child
Let’s examine a hypothetical example of when a parent’s best attempts at maintaining a relationship with their child may not work out in the end. Suppose that a parent was doing everything he could to maintain their relationship with his son. This parent was suffering from a mental illness, but the father acknowledged this and repeatedly sought treatment for the problems. He would go so far as to check himself in for inpatient care at a local hospital, a routine that was performed twenty times over an eight-year period. Despite these best efforts, the problem persisted and was beginning to affect his son.
Violence in the home and repeated calls to CPS regarding the child going to school without clean clothes or food to eat showed that something was very wrong at home. While a judge cannot say that just because a parent has a mental illness that alone is enough to terminate their parental rights, it is almost always the case where the child’s emotional well-being is at risk of harm that a termination of parental rights is a serious possibility.
Money issues and mental health problems
I am asked frequently by potential clients if their disability income from Social Security or a private insurance provider are fair game when it comes to having child support collected out of them. This may be a grey area to an extent due to the fact that the income is not earned from a job but nonetheless, that income is fair game when it comes to having a portion paid for child support in Texas.
If you are the spouse of a person who suffers from a mental illness then you may have questions about whether or not you can be on the hook to pay for spousal maintenance after the divorce. It is the case that typically persons with mental health problems are not able to sustain work like most of us are fortunate enough to be able to do. Does that inability to work on a sustained basis lead most judges to order spousal maintenance be paid?
Most judges, I believe, would look at things on a case by case basis. If your spouse has shown an inability to hold down a steady job- or have never worked before- then this could be a factor that is used to determine whether or not you need to be responsible for paying spousal maintenance. It is impossible to say whether or not you will be responsible for paying this type of support but a mental health condition that is fairly disabling will increase your chances of having to pay your ex-spouse spousal maintenance.
Annulments and mental impairments
What happens if you meet a person and then get married to that person with very little notice or forethought? The laws in Texas do not require that you get to know a person for a certain period of time before getting married. You can know a person all your life before getting married or can know that person for a weekend and decide to tie the knot. Whatever the case may be for you, your marriage is just as valid as the next person’s no matter how long you have known the person.
Getting married to a person and making a quick realization that the marriage was a mistake is something that our state law anticipates happening on occasion. For that reason, annulments are a legal possibility. An annulment differs from a divorce in many ways, but the most significant of those differences is that if you are granted an annulment by a court then it will be a pronouncement stating that you and the person that you married were never married in the first place. The effect would be as if the marriage never happened at all.
However, it is difficult to be awarded an annulment and you must be able to substantiate your allegations as to why the marriage needs to be annulled. There are justifications related to the mental health of your spouse as to why an annulment is needed. Mental incompetence broadly can mean that your spouse is mentally ill, deficient in some manner from a mental perspective or that you entered into the marriage while in an altered mental state due to alcohol or drug use.
There are cases where a legal guardian or person with power of attorney over a mentally handicapped person file an annulment on behalf of the mentally deficient person. Their justification is often based upon a failure to live together after the marriage as husband and wife and the important characteristic that the spouse did not understand that he or she was getting married in the first place. These two are critical factors that must be in place after a wedding or marriage ceremony. If either or both are lacking, then there is the possibility that an annulment could be awarded by a court.
Questions on child support, annulments or termination of parental rights based on mental health problems? Contact the Law Office of Bryan Fagan
The attorneys and staff of the Law Office of Bryan Fagan appreciate you taking the time to read today’s blog. We hope that it provided you with practical information that you can apply to your day to day life.
If you or your spouse are suffering from mental health challenges and need to seek legal advice in relation to a divorce or child custody case, we hope that you will consider contacting the Law Office of Bryan Fagan. Our team of attorneys is available six days a week to meet with you in our office to discuss your case and to answer your questions. Consultations are always free of charge.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- Child Protective Services Investigation- What to expect and how to handle the situation
- Child Protective Services Investigation- What to expect and how to handle the situation, Part 2
- Child Protective Services Investigation- What to expect and how to handle the situation, Part 3
- Child Protective Services: Investigation Essentials for Texas Families
- CPS and how The Law Office of Bryan Fagan, PLLC can help
- Child Custody Basics in Texas
- Texas Child Visitation Modification
- 10 Quick Tips About Parental Visitation
- Supervised Visitation in a Texas Divorce: Can it happen to me?
- Protective Orders in Texas Family Law Cases
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The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding CPS, it's important to speak with one of our Houston, TX CPS defenseLawyers right away to protect your rights.
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