Parenting orders and a parent’s mental health.
Mental health is a complicated thing, and therefore there are no simple answers. At Smart Legal Family Lawyers, we sometimes receive calls from clients concerned that their mental health diagnosis may see them lose custody of their children. Other times, clients may be worried about their partner’s or ex-partner’s mental health, feeling this may have a negative impact on the children’s care. With this, we thought it was time to answer some of the most common questions.
Is the mental health of a parent relevant when making orders in court parenting proceedings?
It is important to know that no automatic ruling saying a parent suffering from a diagnosed mental health condition cannot look after a child. Above all other considerations, the courts assess the best interests of a child. Unless a parents’ mental health is shown to affect the child negatively, the court won’t necessarily take the diagnosis into account.
When it concerns custody arrangements and mental illnesses, what are the courts looking for?
There are many and varied issues that need to be considered. These include whether or not there is a formal diagnosis, the type of mental health condition, its symptoms, how the symptoms affect parenting, treatment options available, the sufferer’s inclination to seek help and whether the treatment is effective.
The courts will consider how behaviours manifest, such as aggression, depression, delusions, anxiety, etc. and how the behaviours might impact the parent’s ability to care for a child or children. If mental health symptoms or triggers create a risk to a child’s safety, this is likely to influence a court’s custody decision.
What about past mental health issues?
If a parent has suffered an episode of a mental illness in the past that has been treated effectively, and the person no longer exhibits symptoms of the illness, the courts may deem it irrelevant. An example may include a woman who was previously diagnosed with Post-Natal Depression and is now doing well. Another example consists of a parent taking appropriate medication and having therapy to manage their illness.
There should never be a stigma to taking proper self-care, nor should parents worry that their children will be taken away from them for seeking help with and managing a condition.
What if you are the parent alleging the other parent has a mental illness?
The court will also consider the parent raising the concerns and look at how they have previously behaved concerning the mentally ill parent. For example, if a parent alleges that the other’s mental health puts the children at risk, then the court will consider how frequently a child was left alone with the ‘sick’ parent during the relationship. Was there the same concern then? Or are these concerns only raised now given a change in circumstances? Claims regarding parents with mental health conditions are quite common during custody proceedings. Any parent raising concerns on another parent’s mental health must provide the court with substantive, objective evidence of concerning behaviours rather than suspicions.
If you are a parent who has a mental health condition, what next?
It is essential to focus on the effective management of your mental health condition. Your medical team can provide an affidavit to the court confirming your diagnosis and how long you have been in treatment. They can also verify your treatment regime and include observations on your self-management and their professional assessment on the issue. When parents proactively manage their condition and therapy; and medications successfully keep symptoms at bay, the courts usually respond more favourably.
It is important to note that Smart Legal Family Lawyers are not qualified to give a mental health diagnosis. Our team of lawyers do attend seminars by mental health professionals to effectively handle family law cases where spouses have been diagnosed or have a potential mental health condition that may be relevant in either parenting or property cases.
If you would like family law advice and mental health is a relevant factor, please contact one of our specialised family lawyers today on 1300 780 540. Please note our blogs are not legal advice.