Does Mental Health Affect Custody?

How will a court handle a parent that has mental health issues in a custody dispute? Issues related to a parent’s mental health may be considered by the Court when making a decision as to custody and parenting time. However, it should be noted that the New Jersey statute governing custody does not specifically reference mental health; it is the parent’s overall fitness to have custody of a child that the court must consider. When making a custody determination, the court’s primary consideration is the best interests of the child. When determining what custodial arrangement is in the best interests of the child, the Court is required to consider the 14 factors set forth in N.J.S.A. 9:2-4.c.

Although none of the 14 factors set forth in N.J.S.A. 9:2-4.c specifically mention the mental health of the child’s parents, several statutory factors could be impacted from the compromised mental health of a parent. The potential statutory factors may include: (i) the parents’ ability to agree, communicate and cooperate in matters relating to the child; (ii) the interaction and relationship of the child with its parents and siblings; (iii) the needs of the child; (iv) the stability of the home environment offered; and (v) the fitness of the parents. N.J.S.A. 9:2-4.c.

Where a parent’s mental health may be an issue, the court has the discretion under Court Rule 5:3-3(a) to appoint an expert, such as a psychiatrist, psychologist, or other mental health professional, to perform an evaluation of that parent. Additionally, in cases where the court does not appoint an expert on its own, a parent can file a motion asking the Court to require the other parent to submit to a psychological or psychiatric evaluation. Such an application can be granted in cases where the court concludes that its decision would be assisted by the expert’s opinion. Based on such investigation and expert reports, the court may: limit parenting time, restrict that parent to only supervised parenting time, or prohibit parenting time until the parent receives recommended treatment.

Even if a parent has already received a mental health diagnosis before custody becomes an issue, the diagnosis by itself will not necessarily affect the outcome of a custody and parenting time determination. The court must also find that the mental health diagnosis negatively affects the parent’s behavior relating to the best interests of the child. Where a parent is diagnosed with a mental health disorder and the disorder does not adversely affect the child, that parent may still be awarded primary custody where such an arrangement is in the child’s best interests. In cases where a parent seeks to limit the other’s parenting time due to an unestablished mental health disorder, the mental health disorder must generally be proven by way of expert testimony, either through an evaluation performed in connection to the litigation, or through the testimony and medical records of the treating psychiatrist or psychologist. It is important to keep in mind that retaining an expert to perform a psychological or psychiatric evaluation will be at a significant cost, likely to both parties and the marital estate, if the custody litigation occurs as part of divorce litigation. Therefore, having skilled and experienced counsel in this area to provide the appropriate guidance is of the upmost importance.

How Lyons & Associates, P.C. Can Help

If you or someone you know is involved in custody litigation where mental health issues are involved, please contact one of the highly skilled attorneys at Lyons & Associates, P.C. We place a premium on personalized attention for your personal matters and pride ourselves on giving the appropriate guidance and information no matter how obscure the subject matter may be. For a free, private consultation, contact us online or call our office at 908-575-9777.

By: Mark T. Gabriel, Esq.

• Category: Child Custody