Mother holding her child

Child Custody Cases Involving Mental Health Issues

By Michael DiFalco

One of the fundamental rights of parenthood is the right to parent your child. This includes not only being able to spend time with your child but also participating in child-rearing decisions. 

As a parent, you and your co-parent decide where your child goes to school, what religion or philosophy your child studies, and even what friends and extended family members get to be around your child.

These rights do not go away when you separate or divorce. One of the major decisions a court will make in your custody case is with whom your child will primarily reside and what visitation the other parent will receive. 

Parental Rights vs. Best Interests of Your Child

Parental rights are not absolute, however. The court will balance these rights against what the court believes to be the child’s best interests. For the court, your child’s best interests include what would best foster your child’s physical, mental, and emotional health and development.

In most cases, it is in the child’s best interests to have the active involvement of both parents in their life. In certain situations, though, the court may be concerned that allowing a child to spend time with a parent would actually endanger the child’s welfare. Suffering from a mental health issue is one of those situations.

How Mental Health Affects Child Custody Rights

Developing or being diagnosed with a psychological disorder does not automatically mean you will lose your parental rights. However, if a parent’s mental health issue presents limitations on a parent’s ability to care for the child, to make decisions for the child, or to coparent with the other party, it could affect what child custody orders the court enters. 

In deciding whether to modify any existing child custody orders, the court will consider the following:

Severity of Illness

The court will want to know the severity of your mental illness and the associated symptoms. A diagnosis that does not significantly impact your ability to think clearly will be of little concern to the court, for example mild depression or anxiety are very common. However, a diagnosis that includes severe impairment of your faculties or carries the risk of severe mood swings and behavioral changes will be more concerning.

Compliance with and Effectiveness of Treatment

In many cases, a mental illness can be effectively managed through therapy and counseling, prescription medications, or a combination of both. A court will be less concerned about a mental illness when effective at-home and community treatments are available — and you are availing yourself of those treatment options.

Conversely, if treatments are available but you are not taking advantage of them, the court will be more concerned about your ability to parent your child effectively. This is also true if your mental illness requires periods of inpatient treatment at a hospital or facility.

Actions a Court May Take to Address Mental Health

If the court has concerns that your mental health impairs your ability to parent a child effectively, the court may take certain actions, such as the following:

  • Limit the amount of time you can visit with the child
  • Eliminate overnight visits with the child
  • Require visits to be supervised by a designated adult
  • Change primary residential custody to the other parent
  • Give the other parent sole decision-making authority over the child

In extreme cases where a mental health issue results in prolonged or unexpected periods of inpatient treatment, the court may take even more drastic action. The court may suspend the visitation or require therapeutic visitation to resume visits in a healthy way.

Typically, though, these restrictions will only last so long as the mental illness is uncontrolled or not effectively managed. Rights may be restored once it is shown that your mental illness no longer poses a danger to your child’s best interests.

Contact a New York Child Custody Lawyer for Guidance

If you believe a mental illness may be impacting your child custody or divorce case, Aiello & DiFalco can assist you. Whether you are attempting to preserve your rights or limit the rights of a co-parent who is suffering from a mental illness, our family law attorneys in Garden City, NY, will provide you with experienced and effective representation. Get in touch with our office today.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.