Years ago, you were diagnosed with a mental illness. You visited a psychiatrist, received medication, and over time, you got better. Your illness may still be there, but it’s controlled. You wish you could say the same about your marriage. You and your wife agreed to part ways. It’s better for everyone.
You’re a dad. Your daughter is beautiful and kind. She’s your world, the reason you fought so hard to keep it together all these years. While you search for a child custody attorney, you panic. You worry about your mental illness. Will it affect your case? What will happen to your custody rights? Will you have any?
Mental Illness Matters with Custody Rights
Yes, the court may take your mental illness into consideration when determining custody, but this doesn’t mean you’ll lose your rights.
In Virginia, unless there’s a court order, both parents have an equal right to physically possess your child. When you get divorced, this can change. The court will look at your mental and physical health, your finances, hygiene, even the condition of your home to get a sense of who you are. The judge will need to decide whether you present a danger to your child. That’s not a small task.
What Else Will the Court Consider for Custody?
Here are other factors the judge may consider:
- The child’s age
- The child’s physical, mental, and emotional health
- Your relationship with your child
- The best interests of your child
- Your willingness to work with your ex-wife
- History of physical or verbal abuse
- Drug and alcohol abuse
- Your criminal history
- Military service
- Child Protection Services complaints
- Mental health hospitalizations
- Physical and mental impairments that could affect your ability to care for your child
Virginia’s Custody Laws
In Virginia, the court isn’t likely to eliminate all of your custody rights. To do this, the court would have to take away your parental rights, which happens only in rare, extreme cases.
So, what is likely to happen? Well, the judge will look at your mental health history and decide whether or not you pose a threat to your child. If you don’t have a history of violence, crime, or neglect, you should at least get supervised visitation rights. The more you can show you’re competent, peaceful, and that you’re a safe, positive influence in your child’s life the better.
Virginia courts tend to be less active and less aggressive than some other courts in our country. In some states, courts will go out of their way to act if they worry about the mere risk of neglect in the future. This has led to the creation of a common-law doctrine called predictive neglect.
Does Predictive Neglect Exist in Virginia?
This is a common-law doctrine in more than 30 other states which makes the assumption that a parent with a severe mental illness is incapable of not eventually neglecting his or her child. In other words, because the court knows the parent has a serious mental illness, it can predict that the parent will neglect the child in the future. In the court’s mind, to prevent harm to the child, the state must step in and prevent that parent from having custody over the child.
The court doesn’t need evidence that the parent neglected the child. They merely need to show that there’s of risk of it. Yes, this is crazy, but it has happened. For example, a young mother in Kansas has fought for years to obtain custody of her daughter. She never neglected her daughter, and she didn’t cause any physical harm, but that didn’t matter. The court continues to block her custody rights because she’s too risky.
This may be the case in Kansas, but not in Virginia. If you prepare, plan, and fight, your mental illness won’t be a death blow. Your custody rights are worth it. Don’t wait around. Fight. Act.
Protect Your Rights as a Father
When you have a question regarding custody rights, contact The Firm For Men’s father’s rights lawyers and let an experienced lawyer inform you of your rights, explain the challenges you may face, and put a plan in place to protect your interests. The Firm For Men is a firm you can trust, and the only family lawyers in Virginia who represent men only! They know what’s best for you is what’s best for the child.
So, what are you waiting for? Don’t delay, call today. Call 757-383-9184 and take the first step towards protecting your custody rights.