Balancing Mental And Physical Health Of A Parent Against Children's Safety
The rights of parents to the care, custody of, and decision making for their children are deeply endowed in the United States Constitution. The US Supreme Court and federal court rulings have further recognized parents' constitutional rights as to their children.
In Meyer v. Nebraska, 262 U.S. 390 (1923) the Supreme Court held that a law forbidding the teaching of the German language encroached upon the liberty parents possess, bestowed upon them in the due process clause of the 14th amendment, 'the rights to marry, establish a home, and bring up children.'
In Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) the Supreme Court struck down an Oregon law that required children to attend public school finding that the statute interfered with the rights of parents to select private or parochial schools for their children.
In Wisconsin v. Yoder, 406 U.S. 205 (1972) the Supreme Court found that a Wisconsin law requiring a compulsory education violated an Amish father's right to take his child out of school at age 15 to learn the Amish ways at home.
In Troxel v. Grandville, 530 U.S. 57 (2000) the Supreme Court declared it was unconstitutional to order parents to allow more visitation between their children with grandparents than the parents desired.
These rights granted to parents apply to all parents whether in an intact family (both parents residing together with their children) or to parents who are living apart from each other. When parents are in an intact family, they can choose how to raise their children and unless they subject them to 'serious hazards to their wellbeing', Prince v Massachusetts, 321 U.S. 158 (1944), the state will not intervene.
How then do courts balance the rights of parents to custody, care and control of their children with the safety of the children while in their care and custody? The first and most important prong of parenting is to keep their child safe. This becomes the court's responsibility in a contested custody case.
Parents' Mental Health
Parents have a 'privilege' like the attorney/client privilege with their psychologist or psychiatrist however no privilege is absolute. While all 50 states recognize the patient privilege, courts are likely to admit the psychologist/psychiatrist information as it relates directly to the wellbeing of the child, an important consideration as to the child's best interest. 'In family court matters, particularly those involving contested child custody, allegations of impaired mental health or parental unfitness frequently lurk in the background. Since child custody is generally based upon the best interests of the child, allegations of impaired mental health must be addressed.'
Information regarding a parent seeking mental health treatment to assist them in adjusting to divorce and the division within their family is not necessary to the court's stated goal of 'best interests 'of the child. It is when a parent suffers from a mental disease or illness that requires ongoing treatment and medication, that the court is interested in the parent's compliance with their medical regimen and the medication and disease's impact on their parenting ability.
In practice, a former client of mine diagnosed with schizophrenia who had two daughters, aged 10 and 16, refused to take her medication as it interfered with her mania and delusions which she enjoyed more than her sanity. Even after I explained to her that she would lose custody, she refused to be compliant with her medication. She lost custody of her daughters.
In most cases, in which a parent is able to show that they are aware of their mental health condition and are taking appropriate steps to treat it, often including ongoing therapy and medication, the mental illness will not impact on their care and custody of their children.
Parent's Physical Health
When a parent suffers a physical ailment or condition that has the potential to impact negatively their ability to care for their children, the court must fashion visitation with the child that protects the child from any potential harm as well as provide for the relationship between the parent and the children. Concerns can stem from the parent's ability to care for the child if an emergency occurs at night such as fire or illness of the child, or an ability to be physically fit to care for children during the day such as grab them from incoming traffic or chase them in a public park or playground. Illnesses that include potential strokes or seizures are particularly problematic in that the stroke or seizure can occur at any moment leaving particularly small children vulnerable and at risk and unable to seek help.
Courts have the difficult task of weighing the risk of harm to a child and protecting the parent's right to custody. In one case where the disease is rare but the risk of strokes and seizures remains, the court fashioned the temporary remedy of supervised visitation. Having a full-time nanny in the home in another case provided protection for the child where the parent had suffered brain cancer but was cancer-free. Providing frequent MRIs showing the condition was in remission provided further support of the visitation.
In a case where the father was a quadriplegic, the attorney for the child argued for a separate care provider for the child in the event of a fire or medical emergency at night, arguing that the father's care provider would seek to assist the father first.
Transparency of the parent's medical records when a medical condition impacting child custody is alleged can assuage the other parent's concerns as well as the court's concerns re their ability to parent. Refusal to provide the information can be seen as a sign that the parent is trying to hide the seriousness of their condition from the court and the other parent.
In another case involving a rare medical condition where the father suffered a medical emergency in the presence of his children, the father produced all his medical records in support of his claim for shared custody. The court incrementally increased his parenting time, but sadly, when not with his children, he passed away suddenly, exemplifying the difficulty courts face in determining child custody when there is a physical illness.
Drugs and Alcohol Abuse
Allegations of drug and alcohol abuse are not uncommon in a child custody dispute. 1 in 8 children live with at least one parent with a substance abuse disorder. In my practice, the best defense is ongoing drug and alcohol testing and treatment with either an addiction specialist, attendance at regular AA or NA meetings, and following a treatment regimen. The court is faced with providing for the safety of the children and the risk of a parent being impaired during visitation, especially with small children.
Visitation is often supervised and monitors such as sober link or an ignition interlock device, or random check-ins to visits by a social worker, can all be put in place to protect the children. The risk of recidivism is great. The length of time or duration these protections remain in effect depends on the parent being supervised and their commitment to sobriety. 70% of individuals struggling with alcohol abuse will relapse at some point. Relapse rates decline the longer someone stays sober.
For court fashioned custody and visitation orders, the length of time a parent is sober is a good predictor of future sobriety. In one case, Soberlink was ordered for the non-custodial parent for 8 years until the child was age 14 and could determine for herself if she was safe. In another case, the court appointed alcohol abuse expert recommended monitors for one and a half years. The parent relapsed 5 years later. Luckily the children were older.
Conclusion
Custody cases involving mental illness, physical illness or the addiction of a parent are among the most difficult matters faced by the courts. The scales weigh on one side a parent wanting to prove their mental and physical wellness and/or their sobriety against on the other side the risk factors to a child and the well or sober parent's concerns as to those risk factors.
Generally, the court will err on the side of caution, to protect the child by providing monitors such as supervised visitation, breathalyzer devices or check ins during visits until it has an opportunity to hear all of the evidence. Ongoing drug and hair follicle testing can also serve to protect children although parents do attempt to deceive or alter the results of such tests.
In one case a parent replaced his urine with his brother's urine by taping a plastic bag to himself to attempt to bypass having a positive urine test. In another case the parent shaved off all his body hair to limit the lookback of a hair follicle drug test. Another parent bleached his black hair blonde to try to avoid a positive hair follicle test. None of these attempts at deception were successful in fooling the court. In some instances, the best protection for children is their age and ability to protect themselves by calling for help or seeking safety if confronted with a dangerous situation.
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