Plog & Stein, P.C. deals with all types of domestic relations cases, including custody matters. When dealing with these cases, we hear a wide array of allegations raised by one party concerning the other. This can include allegations regarding past criminal acts, drug use, domestic violence, and more. An issue often raised relates to mental health.
Just as ADHD became the diagnosis dejure over the last couple of decades related children and learning disabilites, our attorneys would be rich if they got a dollar for every time one party or the mentioned the terms “bi-polar” or “Prozac.” Prior to speaking with an attorney, many people engaged in a custody battle presume that the other party having some sort of mental health diagnosis is going to be a slam dunk when it comes to litigating custody or vistiation. Generally, they are wrong.
C.R.S. 14-10-124 sets forth certain criteria related to determining parental responsibility (custody). One of those factors is the mental health of all individuals involved. This does not mean that a court is going to automatically find a mental health issue, such as bi-polar disorder, to be a block to someone having custody or visitation. Most custody lawyers know that the courts are really looking at how the specific mental health issue is being dealt with.
One must keep in mind that there are a wide array of mental health issues we see in custody cases. We have seen cases in which bi-polar disorder is so severe that unsupervised visitation is just not safe. We have seen cases in which people imagine they are being followed or that there are sinister and other-wordly apparitions in their homes. We have heard stories of people licking and yelling at televisions. In all of these instances, there was one common factor. The diagnosed or undiagnosed mental health issue was not being treated.
Assuming someone is seeking treatment for his or her mental health condition, including taking prescribed medications, and assuming the treatment and meds are working, most courts are not going to find the mental health diagnosis to be an issue precluding custody or visitation. However, if that person is not following through with counseling or meds, particularly if there is a court order to do so, then the court may have concerns to the point of even restricting visitation or making it supervised until the problem is dealt with.
The key to all of this is what effect the mental health issue may have on the children. Children can be emotionally affected, or worse, when faced with extreme mood swings, angry outbursts, or just bizarre, confusing behavior on the part of a parent. They are already having to deal with the trauma of a divorce or the break up other their family unit. As such, courts are all about counseling, therapy, and making sure children are safe, whether on a physical or emotional level. It is not uncommon for courts to order full blown mental health or psychologcial evaluations when there is an allegation of a mental health issue. Again, problems can arise if the party ordered to undergo that evaluation refuses.
Psychological testing can also be part of a parental responsibilities evaluation pursuant to C.R.S. 14-10-127. Though generally this testing reveals nothing of significance, it can reveal a need for some sort of counseling necessary for the party to overcome some mental health or emotional issues which may affect parenting. Often times that can be just situational anxiety or stress related to the divorce or custody process.
Unfortunately, we get clients with mental health diagnoses who are misinformed or afraid due to threats from the other party that they will lose custody based on the issue. Unfortunately, we also see cases in which there are true mental health concerns which do affect the kids. The goal of our attorneys is to help each of our Denver family law clients appropriately deal with whatever mental health imatters may arise in a case, regardless of which side of the issue they are on. Mental health conditions, like medical issues, should be treated, so that parenting can be done in a healthy fashion. This should really be a common goal for both parents.