Can I Get Custody if My Ex Has a Mental Illness?

  • wife's mental illness and custody

Can I Get Custody if My Ex Has a Mental Illness?

Our everyday conversations are replete with misdiagnoses against others: “You’re crazy,” “She’s nuts,” “He’s two tacos short of a combo plate,” and many others (a National Institutes of Health study1 rounded out top terms like disturbed, scary, psycho, spastic, mad, and loony). But for a parent with a serious mental illness, custody is a huge challenge. If your ex suffers from mental illness, you, as the Dad, also want to protect your kids.

Mental Health & Avoiding Labels

Unless you are among the rare 8,980 mental health counselors working in Virginia (according to the Bureau of Labor Statistics) and are not a psychiatrist or psychologist, you probably should avoid labeling your ex with any labels, especially those stigmatizing, injurious ones. Still, you must look out for your child, and a clear understanding of your ex’s mental illness can help you present a solid case.

Due to the Health Insurance Portability and Accountability Act (HIPAA) and its privacy rule, you as your ex’s former partner may have no legal rights to access her diagnostic papers, medical records, or mental health tests. Your ex would have to place you on the HIPAA forms to allow medical professionals to divulge that information to you.

Your attorney could seek medical records through a discovery motion, so that you and your attorney can make a stronger case based exactly on her diagnosis. The court will balance her need for privacy with the best interests of your children.

Words Matter

More important than presenting a Virginia Circuit Court or a Juvenile and Domestic Relations Court with your amateur diagnosis are the words you use to describe your ex’s behavior. Without judging, diagnosing, or labeling, describe in written words (or aloud) the dangerous conduct itself:

  • She had three to five outbursts and uncontrolled periods of anger each week, usually in front of the children. During these episodes she threw pots, broke dishes, and tore up my mail.
  • She slept 14 hours per weekday, awaking only to get my children ready for school and to prepare a simple dinner, then returning to bed. She did this for nine consecutive weeks from June X to August X.
  • On December X, she told me voices in her head told her the neighbors were going to take our children from us. On January X she said the children had been replaced by pod people.

Your goal is not to doom your ex, but to safeguard your children. All your testimony should indicate how her suspected mental illness impacts your children.

Getting a Professional Medical Opinion

If you and your attorney seek a professional medical opinion on your ex’s mental illness, expect to pay significant amounts (into the thousands) for a psychiatrist’s services.

An alternative is to get a court-ordered psychiatric evaluation in accordance with several different sections of the Code of Virginia, such as § 19.2-168.1§ 19.2-169.2, or § 8.01-413. In most cases, such an evaluation would be triggered by criminal, not civil, behavior. Yet your attorney could press for professional guidance if your ex is uncooperative, defiant, or unwilling to share information for a judge to make a sound decision.

Getting the Kids

Your first hurdle in seeking custody is demonstrating to the court’s satisfaction that, mental illness or not, your ex is not a fit mother for the children while simultaneously showing you are a fit father. This means your argument cannot be so zealous and aggressive that you come across as power-mad (there’s that word again!) or possessive.

The decision is made by the judge based on § 20-124.3, “Best Interests of the Child,” which reads in part:

  1. The age and physical and mental condition of each parent;
  2. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
  3. Such other factors as the court deems necessary and proper to the determination.

This gives the judge wide latitude in interpreting your ex’s actions toward you and your children. If the police were called to your home for any reason, those records can be used to support your argument that she is mentally ill and unable to care for your children.

Guardian Ad Litem

Though you may feel personally offended, your attorney may push for a Guardian Ad Litem (GAL) to be appointed to represent the best interests of your children. You’re their Dad, after all. It’s your job to protect your children, not some court-appointed stranger.

The GAL’s independent lens allows the judge to weigh the impact of your ex’s behavior on the kids themselves. The GAL’s report could be key in helping the judge to see the impact your ex’s illness has on the children in her care.

We’re Custody Attorneys for Dads!

The more outside, professional, unbiased evidence you and your attorney can present, the stronger your case. A strong case begins with a call to The Firm For Men, at 757-383-9184, or by contacting us online. We can help you gain custody of your children, establish a stable home, and, perhaps, get the right mental health help for your ex.

1. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1925070/

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