Child custody when wife is mentally handicapped

Question: I have been trying to hold a marriage together for 10 years. She is severely mentally handicapped and at this point I am trying to see if I can salvage my children (four in all, two stepchildren) from this poison.

I fear that my wife really wants me to make the first move. I think we are at the point where I need to know what my options are. I would really like to get 100% custody and I don’t know how to start addressing that. Please help.


Answer: Well your first step should be to contact a domestic litigation attorney in your jurisdiction.  I do not practice in Indiana, however, Cordell & Cordell has many attorneys licensed and located in Indiana who would be happy to help. 

When you meet with your attorney, you will need to distinguish your legal custody and physical custody concerns.  Often times, people confuse the two.  Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, often referred to as placement, is the time that the child will spend with each parent.  When determining custody and placement of the children, the best interests of your children is the paramount goal for the court.

At your initial appointment, your attorney can discuss filing for a divorce in your state and what options are available to you to protect your children.  When filing for divorce, you will also want to be sure there are temporary orders which protect your children during the pendency of the action.  Without temporary orders, you and your wife have equal right to your two biological children.  However, that does not mean that you automatically have any sort of schedule.  Without the temporary order, there isn’t a schedule that your wife has to adhere to which could, and often does, cause significant conflict.  In addition, if you did not legally adopt your stepchildren, you would not have any legal rights as to your stepchildren without a court order.

Many courts now have a presumption of joint legal custody and a shared placement schedule (though the definition of shared varies by jurisdiction from an every other weekend schedule to a 50/50 schedule).  However, depending on the extent of the mental handicap that you are referring to, you may have a case for sole legal custody and a supervised visitation placement schedule.  Your attorney needs to know the extent of the mental health condition and the effect the condition has had on your wife’s parenting ability.  It is very important that you document your wife’s interaction with your children.  You should maintain a handwritten journal and be sure to journal your entries as soon after the observation as possible.  Be sure to discuss your entries with your attorney.

You reference that you believe your wife is waiting for you to make the first move.  The decision to be the Petitioner in a divorce may be an important consideration in your state.  In addition, you and your attorney should discuss your living arrangements and any financial decisions PRIOR to you making any changes.  Therefore, I highly recommend you contact a domestic litigation attorney for an initial consultation as soon as possible.


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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