Mental Illness and Child Custody: The Impact of Treatment

When a relationship breaks down in the midst of psychiatric distress, loss of custody is often one of the greatest fears parents who struggle with mental illness face. In trying to cope with that fear, you might begin to tell yourself stories to try to shield yourself from the reality of potential loss, convincing yourself that your illness doesn’t affect your child or your ability to parent. Mental illness, after all, often distorts our ability to see ourselves and the world around us clearly.

The truth, however, is that severe mental health disorders often impact children. Whether they know about your illness not, it can compromise your ability to care for yourself and your family, make responsible decisions, and prioritize those who depend on you. As such, whether your child witnesses or comprehends disordered emotional states may be irrelevant; severe psychiatric distress can sometimes eradicate your ability to parent responsibly and reliably because it removes your ability to think and behave in the best interest of those you care about, including yourself and your child. These circumstances are not the result of personal failure, but about the nature of severe psychiatric illness itself.

The justice system recognizes this reality and takes mental health issues into account when ruling on legal and physical custody matters. “In a custody dispute, the issue is not so much whether you are ill, but what effect your illness has on your child,” writes Beverly Bird. “Your spouse would have the burden of proof in a divorce trial to establish not only that you suffer from [mental illness], but that it endangers your child either mentally, physically, or emotionally. Your spouse—or her attorney—will typically try to establish a pattern of times when you inadvertently put your child at risk because of your illness.” Of course, not all people with mental illness present a risk; many people living with psychiatric disorders can, and do, successfully and safely parent. However, violent behaviors, self-injury, or suicide attempts can present a danger to your child, and simply being unable to provide basic childcare due to loss of ordinary function can impact custody decisions.

Although the mental illness alone does not automatically disqualify you from custody, an active co-occurring drug addiction might. As Brenna Davis writes:

All states use the ‘best interests of the child’ standard in determining custody arrangements and parents who abuse substances generally can’t provide a home that is in the child’s best interests. Thus, it’s unlikely an addict will receive primary or even joint custody of his children.

In order to prove to the court that you are in an active state of addiction, the judge may compel you to undergo a substance abuse evaluation conducted by a court-appointed evaluator. This evaluation determines both the current impact of addiction on your life and the potential impact your continued drug abuse could have on your child. While you have the opportunity to present evidence that you are indeed fit to parent, the truth is that an active state of addiction is inherently antithetical to fit parenting.

So how do you maintain or regain custody when you are struggling with a severe mental illness? By seeking treatment. While many people fear that getting help will only confirm the existence of a mental health disorder and therefore threaten custody, the presence of a severe mental illness is rarely in question and denying it does not help you. Getting the support you need to create a safe and healthy living environment for yourself and your child, however, does. In doing so, you demonstrate an awareness of the problem and that you are taking meaningful steps toward healing, potentially giving you the evidence you need for a favorable custody ruling

The same is true for those struggling with a co-occurring substance abuse disorder. “Many states have a rebuttal presumption that it is not in the best interests to reside with an addicted parent,” explains Davis. “A rebuttal presumption is one in which an accused parent can rebut an assertion of substance abuse by explaining the addiction is in the past.” Being able to provide hard evidence that you are in a state of recovery following treatment is invaluable to creating a case for rebuttal. Even in cases where only visitation is initially allowed, the ability to demonstrate continuing sobriety and commitment to treatment will only bolster your case when you petition for custody in the future.

It is never treatment that will compromise your custody case. In fact, as Anna Green points out, it is untreated illness that is the true danger, while “treating the underlying illness is often key to protecting custody and parental rights.” There is nothing to fear in healing; it can only help you in your quest to protect your relationship with and your legal rights to your child.