Did you know that 1 out of 5 adults has a mental health issue? That means that every two to three families are dealing with a mental health issue at any given time. Look down the street. That means every other household in your own neighborhood is likely dealing with a mentally ill family member. You are far from alone, even though it may feel that way sometimes, especially when dealing with a case in family court.
The good news is that serious mental health issues, the ones that are really scary when you are divorcing with kids, do not happen as often. The studies show "serious" mental health issues occur in about 1 in 20 adults or about one in every ten families. That is still a reasonably high percentage, and much higher than most families are aware of when they find themselves involved in family court litigation.
Often, it is a mental health issue, whether diagnosed or not, which often sets off a divorce and/or a child custody case. It is undeniably hard to be married to or attempt to co-parent with someone who is dealing with a mental illness, especially when the mental illness has gone undiagnosed for a period of time.
Here are the typical pitfalls which come up during a divorce or a child custody case when your ex has mental health issues:
- Your ex may not believe that s/he has a mental illness. This makes diagnosing and treatment almost impossible. The Court will likely have to order a psychological evaluation to "prove" this fact and then take into consideration the recommended treatment plan when crafting a final custody order.
- Your ex agrees that s/he has a mental health issue but refuses to take medication for it or does not believe s/he needs therapy. Refusal to accept the recommended medication intervention can create a more difficult situation with compliance with the Court's Final Order, which will eventually lead to enforcement issues.
- Your ex is in therapy, but the therapist is not very good and your ex is not getting better. This is most difficult when the Court action is already finalized because often you must wait until something your ex does has a negative effect on the children before you overcome the burden of proof to have the Court re-examine the situation.
- Your ex downplays why their mental health is a concern (e.g., they are a great dad or mom anyway). Even if they are seeking and cooperating with the recommended treatment plan, most treatment requires buy-in from the patient that there is a serious issue for the therapy/treatment to be productive. If there is no buy-in, there will be delays before any noticeable improvement can be appreciated by those involved.
- Your ex has a mental illness and the Court believes you, but it seems to downplay why it's important or how it affects you and/or the children. This might be one of the more difficult aspects of a Family Court case. Judges and attorneys, while exposed to lots of training on psychological topics as they apply to families and children, are not mental health professionals. It can sometimes be very expensive to "prove" to the Court how drastically the mental illness affects every aspect of the family's life.
- Your ex has a personality disorder, which is very difficult to “see” and “prove” in Court. The science of psychology is becoming more advanced every day, but it's an ever-evolving science and therefore never perfect at catching everything a family may experience in the privacy of their home before a separation occurs. You may have to orchestrate your co-parenting life around whether there will be third-party witnesses present in order to "prove" your version of the facts. Family Court, by its nature, is often a court of "he said/she said." Your ability to think ahead and be proactive about ways to document your side of the story will enhance your attorney's ability to effectively overcome the "he said/she said" aspects of your case.
So what can you do?
- If you suspect mental illness has or will play a part in your family court case, tell your attorney at the outset of their representation. Be sure to give specific examples of what you believe are traits of mental illness. You can ask the Court for a psychological evaluation, and there are strategic ways to do this so your attorney will have the best advantage knowing this is an issue at the beginning of the case, not at the end of it. One thing to be aware of: The Court may ask you to take one too. So be prepared for that possibility and understand that this cost will be separate and apart from the legal fees you have paid your attorney.
- To the extent you believe the mental illness will significant affect or even impair the other parent's ability to parent your children, you can ask for a Custody Evaluation. This type of evaluation includes everyone in the family, including the children. The evaluator can make recommendations on legal custody, physical custody, and the parenting plan. The evaluator may also make recommendations about treatment. Again, it's important that you ask up front for what you want (e.g., treatment plan) in order to obtain the most useful evaluation results possible for the Court's consideration.
- You can ask your ex to go into treatment as a part of the parenting plan/divorce agreement resolution. In other words, in order for your ex to have time with your kids, s/he must be in treatment. This is often something asked for at the mediation stage of a case, especially if the psychological evaluation or the custody evaluation makes this recommendation. However, if your case goes to trial, it will be up to the Judge to decide, after reviewing all the evidence, whether this will become part of the Court Order. This is typically reserved for the most serious cases of mental illness, since studies have shown long periods of absence between parents and children is detrimental to the children on many levels and the Court will avoid that if there are any other viable solutions offered.
The Stevens Firm, P.A. - Family Law Center has provided exceptional legal counsel and support to families throughout South Carolina for over two decades, handling all matters of family law, such as child custody, child support, and divorce. We are well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact us at (864) 598-9172 to schedule an initial consultation.