The well-being of your child is the most crucial thing in the world to you as a parent. Since your child was young, you have done everything that you can to minimize risk in their life and provide for them a great childhood. Even if your ex-spouse has not always been the best parent, you have worked as hard as you can 2 provide your child with a nurturing, healthy upbringing in a stable. Since your divorce, it has been a challenge to do so, but you've always put forth the effort.
Part of the reason you got divorced from your child's other parent is because of mental illness in instability problems that he was experiencing during your marriage. Not only was managing his mood swings and emotional outbursts difficult for you on a marital level, but you believe that he posed a risk to your child's safety. Despite counseling and other efforts made by both of you during your marriage, you decided to go forward with the divorce, which has now been done and over with for a couple of years. Those two years of post-divorce life have mostly been peaceful, but now that your ex-spouse is attempting to gain primary custody of your child, you need to figure out how to maintain Your role as primary conservator of your child.
Beyond your opinion that your child is better off living with you in that it is in her best interests to remain in your care primarily, you also have concerns about your ex-spouse's mental health. These are not merely concerns expressed by a frustrated parent, either. Your ex-spouse seeks clinical care for mental health impairments, takes medication, and has displayed anger and emotional control issues. Not only do these issues negatively impact your marriage, but they have negatively impacted your ex-spouse in the workplace and socially. The bottom line is that you have legitimate concerns about how his mental health would affect your child's ability to be the primary conservator.
in a joint managing conservatorship, parents share rights and duties related to their child
Most people who go through divorces or child custody cases in Texas come out on the other side as joint managing conservators of their children. This means that both you and your co-parent share in the parenting responsibilities regarding your child and share in the ability to make decisions on behalf of your child, as well. While you may hold the right to determine the primary residence of every child and the right to received child support, all other rights and duties are pretty well split down the middle.
This may have been acceptable to you at the time of your divorce, given the state of your ex-husband's mental illness at that time. However, despite diligent attempts to seek care for that mental illness, it has progressively gotten worse over the past two years. Not only are you legitimately concerned about your child's safety when she is with your ex-husband, but you have significant concerns on top of that regarding your ex-husband becoming the primary conservator of your child.
Joint managing conservators of a child must communicate and co-parent well to care for their child effectively. This is not just the opinion of one lawyer blogging on the internet. Disagreements occur not infrequently between parents of all sorts. I'm sure you have experienced situations like that in your own life as a parent. However, we need to be aware that mental illness provides challenges to your ex-husband in parenting your child and being able to communicate and co-parent with you.
When may a court name a parent as the sole managing conservator of a child?
It may be the case that you need to seriously consider whether or not a modification of your divorce decree is necessary with conservatorships. Assuming your spouse's mental illness, you would need to consider whether you're being named as the sole managing conservator of your child would be in her best interest. A sole managing conservator shares fewer rights and duties of parenting with a possessory conservator due to a wide range of potential problems that another parent would bring in two the co-parenting relationship.
Typically speaking, the appointment of one parent as a sole managing conservator of a child is very rare. A judge would need to determine that to name one parent as a joint managing conservator would present a severe risk of harm to that child's physical health or emotional well-being. Let's take some time to discuss what a family law court would need to consider and what factors would be considered when determining whether a sole managing conservatorship would be appropriate for you, given your circumstances.
Family violence is probably the most significant factor that a court would look to when determining whether or not a sole managing conservatorship was appropriate for your family. If the mental illness of your ex-spouse were a factor during your marriage and has persisted into your post-divorce life, then I would imagine that a court would very seriously consider naming you as so managing conservator of your child. The safety of your child is of the utmost importance to a judge. The reality is, also, that a judge would not want to look the other way in a situation that involves family violence only later to find out that you or your child suffered some harm at the hands of your ex-spouse. Given the risks in history involved, if family violence has been prevalent, I think a sole managing conservatorship would be considered if he were to ask for it.
Neglect and abuse have brought about CPS involvement.
Many times, connected to the subject of family violence, if Child Protective Services has ever been called on your ex-spouse about his behavior with your child, then a sole managing conservatorship is more likely to be considered by a court. This is true even if there is no CPS case ongoing and even if the CPS case did not determine that abuse or neglect occurred. The sheer fact that CPS had to become involved and investigate your family meant that this agency decided there was sufficient evidence to at least merit an investigation. This is significant in a child custody case and bears consideration by a judge.
How well are you able to care for your child?
This is the bottom-line question that a judge would need to ask in any child custody case. Considering all of the relevant factors in your case, the simple analysis that would need to be done is which parent is better suited to care for your child? If you found yourself in a situation where your ex-husband was asking for primary custody of your child, and you are asking for sole custody of your child, then the judge can choose to grant either request or do something in the middle. By in the middle, I mean that they could decide to maintain custody similarly to have your child as he holds now with slight changes.
To this end, if a judge has to consider which parent is in a better position to be responsible for your child's daily care, then it merits mentioning that your ex-husband has a mental illness. This does not mean that you are cruel or petty to your ex-husband. The thoughts and feelings of a grown-up are less important than your child's physical and mental well-being. Not mentioning an essential factor like the mental illness of your ex-husband would be a potentially harmful thing for your child.
Mental illnesses manifest themselves differently for different people. If your ex-husband has been arrested recently for a crime committed brought about by their mental health, or if he abuses drugs and alcohol, these would be examples of how a mental illness could show up in the habits and activities of a daily living ex-husband. They can sometimes be difficult from a clinical perspective to prove or substantiate a mental illness allegation. However, providing a court with real-world examples of that mental illness and how it impacts your ex-husband would seem to be an excellent place to start.
What types of mental illness do not necessarily rise to the level of great importance in a child custody case?
Not all mental illnesses are created equal. Not all people's experiences with mental illness are created equal, either. If your ex-husband were diagnosed with anxiety or depression but never manifested any symptoms, did not need to take medication, And saw a counselor or therapist only a couple of times a year for wellness visits. It is unlikely that a judge would look harsh leopon these mental illnesses with child custody-related matters.
Typically, it is only when a parent cannot care for himself or their child that a mental illness becomes relevant in a child custody case. What the court will not do is determine custody rights to a child based on a once-in-a-lifetime problem with the mental illness or behavior that occurred on an isolated occasion and never came up again. Do not assume that if your ex-spouse has had some mental illness diagnosis in the past, this will be your Golden ticket to getting whatever you want in a child custody case.
Courts are becoming much more familiar with mental health treatment and how mental health conditions impact parents in their day-to-day lives. As more persons who come before courts have diagnosed mental illnesses, judges are learning how to protect children and protect the parental rights of the parent who suffers from mental illnesses. In a way, mental illness can be similar to an unfaithful spouse in a divorce. What I mean by that is having this be a factor in your case in and of itself does not necessarily mean that your lawsuit will be changed dramatically.
Final thoughts on mental illness and child custody cases
If you find yourself involved in a child custody case with an ex-spouse with a mental illness, you need to carefully consider how this factor will impact your topic. Assume that, absent of other factors and information, this mental illness automatically entitles you to whatever you want in a child custody case would be an error in judgment. Mental illnesses are not conditions that are only rarely diagnosed in people in our day and age. A judge will not treat a person who has a mental illness as someone unable to care for a child unless their past behavior or severity of their condition necessitates it. Judges ordinarily do not want to get in between parents and their children.
If you find yourself involved in a child custody case with a Co-parent who has a mental illness, you need to be smart about utilizing this information. If you have serious concerns about your child's well-being when he is with your Co-parent, then evidence needs to be submitted as such. Making allegations of mental illness with no evidence or proof of any risk of harm to your child can make you look less competent as a parent. It is a great idea to speak with an experienced family law attorney if your circumstances sound like what we described today in our blog post.
Questions about the material presented in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the information provided in our blog post today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week here in our office. These consultations are a great way to learn more about Texas family law and about how our office is best suited to assist you and your family in whatever family law circumstance you find yourselves in.