There are many reasons why marriages come to an end. One reason that is too seldom discussed is mental illness. If one spouse suffers from certain types or certain severities of mental illness, it can make it difficult or impossible to keep the relationship healthy – especially if the ill spouse refuses to get treated or comply with treatment recommendations.
If and when the couple ends up getting divorced, mental illness could also play a role in child custody decisions. Because May is National Mental Health Awareness Month, it is a good time to discuss the mental illness of a parent as it relates to child custody proceedings.
To be perfectly clear, there is nothing shameful about mental illness, particularly when it is properly managed through medication and therapy. Millions of Americans suffer from depression and other forms of mental illness, and they are wonderful, loving parents.
That being said, there are instances in which certain diagnoses significantly inhibit a person’s ability to function or make wise decisions, and this can be a reason to limit or deny that person custody. If your former spouse or co-parent suffers from mental illness that cannot or will not be controlled through treatment, evidence of that mental illness may be an important factor in your custody dispute.
The first thing you’ll need to do is a secure an official diagnosis of your co-parent’s illness. If your co-parent has a treating physician and you know who it is, you may be able to subpoena treatment records, doctor notes and even testimony from the physician. If your spouse is undiagnosed or you don’t know who their mental health professional is, you may need to file a motion to have your spouse undergo a psychological evaluation. In either case, it is important to have a diagnosis, in writing and on the record. It is not enough to testify that you have seen your spouse take certain medications or share your opinion of what your co-parent’s diagnosis may be.
Once you have the above evidence, you’ll need to properly incorporate it into the custody order. If your spouse wants to have visitation or custody rights, you may be able to impose conditions such as regular treatment, compliance with medical orders and medication orders. The diagnosis and the conditions should be included in the final order or decree, in case the document needs to be enforced later on.
While a co-parent’s mental illness does not make him a bad person or even a bad parent, failing to take care of himself could put your children at risk. Therefore, you need to be explicit and methodical about including mental health as a consideration in the custody proceedings.