The Challenges Mentally Ill People Face in Family Court

According to the child welfare authorities of some states, up to 1 in 5 of their cases involve a parent who suffers from a mental illness. This raises serious moral, emotional, ethical, and legal issues, none of which are simple.

If a parent is struggling to keep custody of his or her children, and suffers from a severe mental illness, this can make an already-difficult situation even more wrenching.

And while the stigma surrounding mental illness has diminished significantly in recent years, it still persists. This means that, once a person is diagnosed with virtually any mental illness, many people automatically assume that they are not fit to be parents, even if they know better than to publicly acknowledge this assumption. This is very unfortunate, because many mental illnesses, such as depression, bipolar disorder, and obsessive-compulsive disorder are often highly treatable. And while they present challenges for sufferers and their loved ones, they don’t automatically prevent a person from being a loving and competent parent.

Of course, I don’t deny that some very severe cases of mental illness can turn a person into a threat to themselves and others, and render them unfit parents. However, these cases are relatively rare.

This article (found at the Family Law Prof Blog) provides a very good overview of some of the legal challenges that parents and guardians have to deal with when facing mental illness, as well as some very poignant examples. It’s definitely worth a read.

It points to the fact that the social services system often automatically assumes that the mentally ill are unfit parents. To this day, society seems to view mental illness as something of a moral failing, or a choice, as opposed to what it is: an illness. The article even points to case workers openly mocking and laughing at behaviors that are a result of mental illness.

Furthermore, many case workers see mental illness when there is none: they might observe a parent behaving erratically, and displaying strong emotional swings. They will sometimes assume that this is a result of a mental illness, when it is actually a response to the trauma of having one’s child taken away.

I’ve written many times before that the law should (and generally does), first and foremost, consider the best interests of the child when making decisions. Everything else, such as the wishes of the individual parents, their convenience, etc. should come second (and a distant second, at that). I’ve also pointed out that the law assumes (correctly, I believe) that it is in a child’s best interests to be in the custody of at least one of their parents. This is a very, very strong assumption, and it can only be overridden if there is extremely compelling evidence that a parent is unfit to take care of a child, and that it is therefore in the child’s best interests to be removed from the custody of the parent.

But if local authorities in charge of child welfare don’t have a decent working knowledge of mental illness, and what it actually entails, it is impossible for them to make an accurate determination of what’s in a child’s best interest, in dealing with a mentally-ill parent.

This is especially problematic because some statistics suggest that as many as one in five parents who have direct contact with the child welfare system suffer from some form of mental illness. This should press upon you the importance of ensuring that child-welfare workers are adequately educated about mental illness. At the very least, it should be made perfectly clear to them that a diagnosis with a mental illness does not, in and of itself, make a parent abusive or neglectful.

Furthermore, there are no standards governing when a parent and/or child should be subject to a mental health evaluation. Case workers have broad discretion in ordering psychiatric examinations. And because they often know very little about mental illness, or psychology in general, they sometimes act on their prejudices, rather than objective facts.

This also means that parents can be subject to repeated psychological evaluations which deliver contradictory results.

All of these factors come together and lead to create a situation in which children are separated from their parents more often than necessary.

This ignorance about mental illness causes problems in all sectors of society – it stigmatizes people who just need help, and it can even tear families apart unnecessarily.