Family Law Matters and Mental Illness: When Competency is in Question

Kane County family law attorneyDivorce and family-related legal proceedings are difficult on all parties involved. It can get infinitely more challenging when a parent is struggling with mental illness. However, the mere existence of mental illness or neurological variance should not be grounds for loss of parental responsibilities, formerly called child custody. Every person is entitled to a fair evaluation of his or her legal competency.

Legal Competency

When a parent is mentally ill, the issue becomes one of mental capacity, which is used to determine a person’s legal capacity to parent. Unfortunately, many times, that capacity is assessed by outdated benchmarks, by biased people. Recent statistics by the National Council on Disability shows rates of child removal from a home where one parent has a psychiatric or intellectual disability are as high as 80 percent. This is manifestly unjust for both parent and child. A parent’s disability may be considered when determining the best environment for a child, but making a blanket determination without an appropriate review is wrong.

If you are in a position where your competency is being questioned, you are entitled to defend yourself. However, the law in about 30 states is against you if you have a diagnosis. Thirty states (though Illinois is not one of them) have adopted the doctrine of “predictive neglect,” which means that a state may terminate a parent’s rights unilaterally if they believe that the parent has a mental illness that could be a risk to the child. No harm must have occurred; the mere existence of possibility is enough.

In Negotiations or at Trial

During child custody negotiations, the question of mental illness can crop up in a significant way. This is especially true in cases that have become personal and ugly. A spouse may reveal his or her spouse’s mental illness as a method of getting a “leg up” in negotiations or may misstate the truth of how the illness presents itself.

To defeat the biased assumptions of a court or specific judge, it is necessary to have the facts on any mental illness or disorder for which you have been diagnosed. While most judges consider evidence of illnesses like bipolar disorder, depression, and Munchausen by proxy, those are not the only ones they see. Pronounced anxiety can be a problem, as well as a diagnosis of Autism Spectrum Disorder. The primary concern of a family court judge must be the best interests of the child or children involved, but many judges are not equipped to make such determinations on their own when a parent’s mental health is at issue.

In any such case, your best option is to demonstrate your fitness affirmatively. Be frank with the court, and if possible, present accurate and personal records that clearly show the extent of your condition. When the evidence you present is personalized and complete, a judge is much less likely to rely on impersonal generalizations in making a decision.

Contact a Parental Rights Attorney

When you are involved in a family law matter, you are entitled to the same unbiased considerations as anyone else, regardless of any conditions you may have. Contact an experienced Kane County family law attorney for help. We will ensure that you have the chance to be heard and that your rights are fully protected along the way. Call 630-549-0960 today.



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In honor of the passing of our founder, Joseph F. Mirabella, Jr., our offices are closed Friday, January 31, 2020.I Agree