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Kevin O'Flaherty

This article will discuss how mental illness can impact parenting time and child custody decisions during divorce proceedings. We will answer the following questions:

  • Is mental illness immediately factored into custody cases?
  • How does the court differentiate between mental illness and stress?
  • Can I receive less parenting time or be denied custody due to mental illness?
  • How can I avoid custody issues due to my mental illness?

Many divorcing couples try to argue, most without any evidence, that their significant other is "just plain crazy." But in reality, the percentage of Americans suffering from a mental health illness is estimated to be just above twenty percent. However, many experienceds agree the actual number is significantly higher. Much of the underreporting has to do with the stigma attached to mental health conditions in the United States. So what happens when one parent has a diagnosed mental illness or a history of signs and symptoms?

Is Mental Illness Immediately Factored Into Custody Cases?

Yes and no. In Illinois, the court considers all factors when deciding the child's best interests. Mental illness can mean many different things, but if one of the parents has a diagnosed condition or has a history of signs and symptoms indicative of mental illness, the court can't simply ignore a fact of the case.  

When making a decision on custody and parenting time, the court will look at both parent's behavior. If a parent has a history of providing a stable environment, mental illness should not be used against that parent. However, if the parent's condition is poorly managed, leading to behavior that places the child in jeopardy, they should expect it to reflect in the ruling.

How Does The Court Differentiate Between Mental Illness And Stress?

An impending divorce or the realization that you may have to split time with your child would cause anyone stress. Without a proper evaluation, it can be difficult for the court to differentiate between genuine mental illness and poor reaction to stress. What if a husband alleges a history of poor behavior by the wife, but she fires back that they were only reacting to money troubles caused by the husband? The court deals in facts and reality. No matter how stressful a situation becomes, if a party commits acts jeopardizing the child's best interests, the court will take the behavior into consideration.

If you believe the other spouse may have an undiagnosed mental illness or is failing to manage their mental illness, you should take these steps to protect everyone involved:

  • Keep a record of the other parent's behavior and conversations: Any form of conversation —email, text, phone, voicemail, etc.— not recorded surreptitiously, and that the other person willfully participates in, can be used as evidence.
  • Consider an order of protection: If it's clear that the other party's behavior is at odds with the best interest of the child, especially if it is placing the child's wellbeing in jeopardy, petitioning for an order of protection may not be a bad idea. 
  • Make a formal petition for a mental illness evaluation: During the divorce proceedings, it may be necessary to petition for the other party to be evaluated by a medical health experienced. An experienced's opinion can quickly put to rest any debate on the subject. However, if the other party is unwilling, expect to provide significant evidence in order to have a motion granted by the judge.

Can I Receive Less Parenting Time Or Be Denied Custody Due To Mental Illness?

Mental illness alone will not keep a parent from getting parenting time or result in an outright denial of custody. What the court will look at is your behavior. You can have multiple mental conditions, but if they are managed by medication or other means, and your behavior leading up to the divorce has generally been in the best interest of your child, then you have little to worry about. However, suppose there is a history of behavior that suggests otherwise, such as failing to complete everyday parenting responsibilities, self-destructive tendencies, or alcohol or drug abuse. In that case, the court may place restrictions on that parent's parenting time or deny custody if the child is at risk.

How Can I Avoid Custody Issues Due To My Mental Illness?

It's normal to be concerned over how your spouse might try to paint your mental illness in a negative light during divorce proceedings. The worst thing you can do is try to cover it up and pretend like it doesn't exist. 

As we've said before, if you can show that your mental illness is well controlled via medication and you have a history of providing a stable, nurturing environment for your child, it should have little to no impact on parenting time and custody. But, if you find you're struggling with the divorce, have made less than desirable decisions due to stress, and question whether you actually have a mental disorder, being proactive is crucial. Speak to a therapist and be evaluated appropriately. If the other party presents evidence of your behavior and tries to suggest that you have a mental illness, you can show them that you seek help and have the situation under control. Furthermore, you will know that you are in the right mind to do what's in your child's best interest.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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