Mental illness and child custody cases are a fairly common part of the divorce process for many couples.
Not only can mental illness impact the outcome of your case, but court cases involving mental illness can also be more expensive.
Parental mental health is very important to the overall well-being of the children. Parents with mental health issues should not be forced out of a child’s life just because of their illness, but children of parents with mental illness can face certain risks and it’s the court’s job to do what is in the best interest of the children. Therefore, depending on how the severity of the illness and how it is being treated, mental illness can be grounds for losing custody of children and one parent receiving sole legal and physical custody.
One aspect of divorcing someone with mental illness that makes it tricky to deal with is that each illness involves particular common characteristics, but also carries attributes unique to the individual. That makes a one-size-fits-all solution to addressing mental health and parenting issues impossible. That’s problematic because court orders tend to be more generalized rather than individually crafted to address the specific issues a mentally ill parent presents.
How to prove mental illness in custody case
It’s critical to let your lawyer know as early as possible in your custody battle that you or your spouse suffers from a mental illness, even if you only suspect it. Experienced family law attorneys will understand the impact mental health can have on custody and can help you prepare your custody case accordingly.
Early diagnosis is crucial. Even if your spouse has admitted that she suffers from mental illness or if you have seen her take prescription medications, it is still important to obtain an official diagnosis from a qualified mental health professional.
Some mental illnesses are also more difficult to prove than others. For example, Facebook pictures of your ex out partying can be helpful in proving alcoholism in custody cases, but other disorders have symptoms that are more subtle and challenging to show in court.
Generally, most states will not allow you to testify in your custody trial regarding what mental illness you think your spouse has. Although you can testify about her behavior or about things such as what medications you have seen her take, doing so isn’t guaranteed to result in the court recognizing that a mental illness is present.
There are two main alternatives to receive a mental illness diagnosis:
- If you’re familiar with a doctor who has previously treated/diagnosed your spouse for mental illness, or if you’re able to ask questions during discovery to reveal this information, you can subpoena both the treatment records and notes of the doctor subpoena the doctor to testify, or use similar techniques during litigation to ensure the diagnosis is entered for use in court.
- If you’re unable to find a doctor who has given a diagnosis, most states permit you to file a motion to have your spouse undergo a psychological evaluation to receive a formal diagnosis.
Although there are costs involved in subpoenaing a doctor or medical records, it is generally going to be much more expensive to obtain a psychological evaluation. Psychologists or therapists who conduct these types of evaluation for divorce or custody cases charge retainers before undertaking any work. This will usually set you back anywhere between $1,500 and $5,000 per evaluation.
There might also be a court-ordered psychological evaluation required for both parties and sometimes even the children. This adds significant costs since you are paying for multiple evaluations.
It’s best to consult with your attorney to analyze the cost versus the benefit of psychological testing so you make the best decision for your custody hearing.
Choosing the right professional
Just as important as securing the diagnosis is ensuring you have the appropriate mental health professional to make the actual diagnosis and persuade the court that the diagnosis is legitimate. Not everyone who works in the mental health field is qualified to make a diagnosis of mental illness.
For example, licensed counselors and social workers have plenty of experience working with mental health issues, but they are typically not qualified to test or diagnose mental illnesses. Even if they are qualified to offer a diagnosis, their opinions must stand up in court through cross-examination or else their assessment is useless.
A psychologist’s or psychiatrist’s credentials alone are usually enough for a court to recognize them as an expert in the field of testing and diagnosing mental illness.
Another factor to consider is that judges can have differing opinions about mental health professionals. For example, some prefer a psychologist who works in private practice as opposed to those who spend the majority of their time conducting psychological evaluations for court proceedings.
Parents with mental illness should be upfront with their lawyer as they can help ensure that they’re getting the necessary treatment. If a judge sees that a parent is doing everything they can to treat their illness, they’re more likely to be more sympathetic when making a custody determination.
If you’re getting ready for a child custody battle while suffering from mental illness or concerned about your spouse’s mental health, contact a family law attorney to figure out the best approach to take in your case.