Mental Illness Is Involved In A Divorce Or Custody Case

Anderson & Boback Family Law
6 min readJan 8, 2020


In custody cases, invariably there is a comment by one of the parties that the other parent is just “crazy.” Even if that is true, and the other parent is diagnosed with a mental illness, how exactly does that affect custodial rights?

According to the National Institute for Mental Health, mental illness is a medical condition that affects a person’s thinking, feelings, and abilities to cope with the demands of daily living. This definition covers a wide variety of conditions, ranging from mild depression to severe schizophrenia or bipolar disorder. But the real question is, if a parent has mental illness, will the court grant them the majority of the parenting time with the child? Or if you are the one with the mental illness, will you be prohibited from keeping your child?

Mental Illness and the Custody Process

Mental illness can mean many things. There is a large array of diagnoses, and a lot depends on what the person does because of their illness. Are they required to take medication? If there are required, do they take it? Is the mentally ill person acting out in a violent fashion? There are many behaviors that are associated with mental illness.

Some people manage their mental illness with medication, or therapy, or learn how to cope with their mental illness. For the person who decides not to use the conventional means and instead self medicates, then there is a problem. Essentially, no matter what your mental illness is, you can still have custody of your children if you are managing your illness.

The courts determine who gets custody of the children based on the best interests of the child. Of course, everyone believes that they are acting in their child’s best interest, no matter how bad the behavior may be. Stability is the number one factor in my opinion. If you are stable and provide a stable environment for your child, your mental illness (if managed) will not be used against you. If your mental illness has you leaving your child home alone, then that is a different story. The best interests of the child is the primary goal when the court is deciding what is in the best interest of your child.

Is it Mental Illness of the Stress of Divorce or Custody Battle?

Sometimes it is hard to determine if the other parent is mentally ill, or just failing to act in their own and the child’s best interest due to the stress of the whole situation. People who believe that they might lose custody rights to their children aren’t always rational. But, how do you know if the other parent is going through a transition and not acting right, or there is a larger problem and they are mentally ill?

Keep a record of the other parent’s behavior

Providing the court with documentation of events and discussion you’ve had with the other parent will be important to your custody case. Keep in mind, while you aren’t allowed to tape a conversation you are having unless the other parent knows it, you can use any message recorded on your voicemail. Any message left for you should be saved and documented with the date it was received (if your recorder doesn’t record the date) as a foundation for that recording will be necessary at any hearing in court. If you and the other parent are using apps like Family Law Software or Talking Parents, those communications can be used as well. This evidence can be very beneficial to determine if mental illness exists. Of course, you and your attorney won’t You won’t be qualified to diagnose mental illness, but the documentation can be provided to a doctor or custody evaluator to assess the parenting situation better.

Is an Order of Protection Necessary?

You and your attorney will have to decide if the other parent’s behavior rises to the level of an order of protection. Protecting your child is the most important thing to do, but don’t use the court system as a sword against the other parent. No parent should seek an order of protection to gain the upper hand in litigation. Many people do it, and when found not to be credible, the fact that you seek an order of protection can be used against you. If the other parent tells you that he/she intends to harm you or the child though, an order of protection is likely a necessary step.

Mental Illness Alone Does Not Prevent Parenting Time

Keep in mind that mental illness alone doesn’t keep a parent from getting parenting time with their child. What is important is the parent’s behavior. Do they fail to show up for parenting time? Do they make unwarranted accusations toward you? Do they exaggerate events? When faced with facts that prove them wrong about those events, do they persist that they are right regardless? These all can be signs that something is not right with the other parent and corrective action will be necessary.

Get Professional Help if the Stress of Divorce or Custody is Causing Problems

If you are experiencing problems with the stress of the divorce or custody determination, you should seek professional help. Seeking a therapist’s help will not be held against you — not by the judge, not the child’s attorney, and certainly not the lawyers involved in the case. When a parent experiences extreme stress, the parties involved in the case welcome the fact that the parent is seeking professional help. When a parent is willing to get help and fix the problem, everyone is better off. Having a mentally ill parent in a case can delay the process and makes the case hard to settle it. Settling cases is always better than litigating them, and watching a parent suffer through the process without help is not helpful to the case. It is always better to have two rational people deciding what is in their child’s best interest. But, if you are having overwhelming thoughts and cannot cope with the case, by all means, call a therapist and get yourself into therapy. Everyone will be glad that you did.

The Role of the Divorce Attorney with a Mentally Ill Client

Let your attorney know that you are having trouble. Sometimes though, you may not know that you are having trouble and someone will need to be appointed to represent you. If you are not mentally ill, but just having a hard time dealing with the stress of the situation, confide in your attorney. Your attorney is not a therapist, but your attorney has dealt many times with mental illness and clients. Your attorney can be a great resource to you and can advise you on what to do next. Doing nothing and hoping it will all go away is not an option. Getting help is encouraged, so tell your lawyer what is going on and they will assist you. Perhaps family therapy is an option. Perhaps individual therapy will help. But doing nothing is not your best choice of options. Keep in mind that if you have a mental illness, so long as you manage it appropriately, you aren’t likely to suffer adverse rulings from the court. It is the person who cannot admit the problem or refuses to address it that suffers the consequences in court.

Your Mental Illness is Likely Affecting Your Child

No one thinks that their mental illness affects their child, but more than likely it does. Your spouse will likely try to demonstrate that your illness affects your child adversely, and will pull no stops in proving it. That shouldn’t keep you from seeking the help you need. The more you deny it, the worse it is for your child. You need to get adequate support for your problem and create a safe and healthy environment for your child. When you take the steps necessary to achieve that, you are demonstrating to the court that you are taking steps to be healthy and that will give you all you need to secure the custodial rights to your child. Illness is not an impediment to having custody, but your failure to commit to treatment very well could be the factor that guarantees your loss of custody.




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