View from the Bench: Parental Mental Health and Child Custody

• Date: 01 January 2016
• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/fcre.12199

ARTICLES

VIEW FROM THE BENCH: PARENTAL MENTAL HEALTH

AND CHILD CUSTODY

Hon. Edmund M. Dane and Jamie A. Rosen

Family courts are confronted with an increasing number of custody or visitation disputes where a parent suffers from a mental

illness. In fact, when making a custody determination, most state statutes include parental mental health as a factor to consider

in a best interests analysis. This article presents best practices from the perspective of a family court judge when it comes to

handling cases involving parental mental health and custody, including a discussion of the nexus between parental mental

health and the parent’s relationship to the child and the weight given to custody or forensic evaluations.

Key Points for the Family Court Community:

In determining the best interests of the child, the family court judge must evaluate the parent–child relationship, parent-

ing capacity, and parenting skills.

Most state statutesauthorize judges to consider parentalmental health as one of many factors in a bestinterests analysis.

The judge must weigh all of the evidence and determine whether a parent’s mental illness impacts the best interests of the child.

In making this determination, the judge can rely on the custody evaluation, the child’s attorney or guardian ad litem,

and personal observations, among other sources.

Keywords: Best Interests; Custody; Divorce; Evaluation; Mental Health; Mental Illness; Parental Fitness; and Parenting.

INTRODUCTION

Child custody and visitation disputes are extremely difficult for judges to decide.

1

These family

court matters may involve complex issues such as requiring the judge to review past behavior and

family history, predict future behavior and outcomes, and rely on expert testimony to ultimately

determine what is in the best interests of the child. Part of this analysis requires the judge to evaluate

the parent–child relationship, parenting capacity, and parenting skills. This close examination of the

family might reveal a potential mental health issue in one or both of the parents.

Family units where one or more parent suffers from a mental illness are more likely to experience

divorce than families without parental mental illness.

2

Further, research suggests that parents suffering

from a mental illness are more likely to lose custody of their children.

3

Most state statutes authorize

judges to consider parental mental health as one of many factors in a best-interest analysis.

4

A parent’s

mental illness may increase the risk for a child’s own emotional or developmental growth or interfere

with the ability to care for the child and provide a safe home environment. However, not all children

will be negativelyaffected, or affected in the same way. The fact that a parent has a mental illness alone

is not sufficient to deny physical custody or parenting time.

5

Rather, the court must evaluate how the

mental illness affects the parent’s behavior, the ability to nurture the child, and the overall safety of the

child. Ultimately, it is up to the family court judge to weigh all of the evidence and determine whether

a parent’s mental illness impacts the bestinterests of the child.

When determining what is in the best interests of the child, the judge can rely on several sources

of evidence, such as the custody evaluation (also known as a forensic evaluation), the child’s attor-

ney or guardian ad litem, and personal observations (e.g., testimony of the parties) in order to

Correspondence: jrosen@abramslaw.com

FAMILY COURT REVIEW, Vol. 54 No. 1, January 2016 10–17

V

C2016 Association of Family and Conciliation Courts