Feb 21

Why Mental Illness is a Concern to the Court in Every Child Custody Case

Written by: Megan Dell


South Carolina law requires mental illness to be a concern in every child custody case. Children’s best interests are often impacted by their parents’ mental health and psychological functioning, including how they cope with separating from the other parent. 

Why Mental Illness is a Concern to the Court in Every Child Custody Case

Factors for Determining the Best Interest of the Child

S.C. Code Ann. Section 63-15-240(B) lists seventeen factors for the Family Court to consider when determining a child’s best interests:

  • the temperament and developmental needs of the child;
  • the capacity and the disposition of the parents to understand and meet the needs of the child;
  • the preferences of each child;
  • the wishes of the parents as to custody;
  • the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
  • the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
  • the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
  • any effort by one parent to disparage the other parent in front of the child;
  • the ability of each parent to be actively involved in the life of the child;
  • the child’s adjustment to his or her home, school, and community environments;
  • the stability of the child’s existing and proposed residences;
  • the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
  • the child’s cultural and spiritual background;
  • whether the child or a sibling of the child has been abused or neglected;
  • whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
  • whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
  • other factors as the court considers necessary.

How Does Mental Illness Affect Child Custody Decisions?

Simply having a mental health diagnosis does not mean a parent is unable to have custody of their child.

If a parent has a mental illness, the court will typically consider the severity of the illness, the treatment the parent is receiving, and the impact of the illness on the parent’s ability to care for the child. The court may also consider the opinions of mental health professionals who have evaluated the parent.

If a parent’s mental illness significantly impairs their ability to provide a safe and stable home environment for the child, or if the parent is unable to provide adequate care due to their illness, the parent may be found “unfit” to have custody of the child.

However, when a parent is receiving appropriate treatment and able to provide a safe and stable home environment, their mental illness is not likely to significantly affect their custody case.

So, yes, mental illness can be used in child custody cases. And, yes, a parent can lose custody due to mental illness. But for the majority of parents in family law cases, their mental health does not significantly affect their right to have custody of their child.

Common Mental Health Allegations in Family Law

The most common mental health allegations made in Family Court cases fall into three categories:

1 Mood/Thought Disorders

Mood or thought disorders include anxiety, depression, and bipolar disorder. A person with an anxiety disorder may struggle with excessive worry and fear, which can impact their ability to make decisions and take action, or the parent’s anxiousness may encourage anxiety in their child.

A person with depression may have low energy, lack of motivation, and difficulty concentrating, which can make it challenging to keep up with the demands of parenting. They may also have a negative outlook on life, which can impact their ability to provide emotional support for their child.

The mood swings associated with bipolar disorder can be unpredictable and disruptive to the stability of the home environment and may make providing consistent care for a child difficult.

These disorders can vary in severity, and they can frequently be well-managed. However, when a parent does not get appropriate psychological care, then having a mood disorder can result in them living custody of their child.

2 Substance Use Disorders

Substance use disorders include substance dependence or substance abuse. The substances being misused or abused can include alcohol, illegal narcotics, or prescription medications.

Substance use disorders often lead to emotional distance between a parent and their child. Parents with substance use disorders may engage in risk-taking behaviors or have erratic behavior. Overall, substance use can make it difficult to maintain a regular routine, provide a stable home environment, or provide adequate structure and boundaries for a child.

3 Personality Disorders

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (often referred to as the “DSM-5”), which was published in 2013, lists ten primary types of personality disorder. The most common ones alleged in child custody cases are narcissism, borderline personality disorder, and antisocial personality disorder. Family Court cases may also include a party with dependent personality disorder or histrionic personality disorder.

A person with a personality disorder may struggle with difficulties in their relationships, such as problems with emotional regulation, impulsivity, and difficulties with empathy. These problems can impact their ability to provide a safe and supportive environment for their child.

Proving the Effects of Mental Illness Can Be Expensive

Usually the first step to proving a parent is mentally ill is collecting their mental health treatment records. Through the discovery process, a parent can be required to disclose mental health providers and sign authorizations for the release of the records.

In many cases, the records provided by treatment professionals demonstrate the parent is meaningfully engaged in treatment and complying with their doctor’s recommendations and treatment plan.

Sometimes, a parent has limited treatment history, but may have demonstrated patterns of behavior consistent with mental illness. In those situations, it may be necessary to do a forensic psychological evaluation or forensic child custody evaluation.

The custody evaluation process includes selecting a qualified evaluator, allowing the evaluator to interview each party to the case and other witnesses (including the Guardian ad Litem), undergoing psychological testing, and providing collateral information (including medical records) to the evaluator to consider in forming their opinions.

Forensic evaluations are often expensive. It is not unusual for an evaluator to charge a minimum of $2,500 per person to be assessed in the evaluation, and that fee does not include any testimony the evaluator may give in the case.

Protecting Your Child from a Mentally Ill Parent

If you are worried a parent’s mental health is affecting their ability to care for their child, a family law attorney with experience addressing mental illness in child custody cases can help you identify the most efficient and cost-effective strategy to protect your child.

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