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Can Mental Illness Affect Custody?


Should mental illness be a reason to be concerned about your possession order? Caring for the children’s health and safety falls under the jurisdiction of the Texas Department of Family and Protective Services. The department cares for the needy and those that are lease represented in the state of Texas. When someone reports a parent subjecting his or her child to abuse and neglect, the DFPS employees will jump right into investigating the situation. After the investigation and evaluation, they will submit recommendations on how the State should proceed in order to protect the child. The safety and well-being of the child is always a priority.

At times, due to these recommendations, the court can order restrictions in visitation, possession and access to the child. This is often common in cases wherein DFPS employees discover significant evidence of child abuse and neglect. In extreme cases, DFPS can submit a petition in court to terminate the parental rights of the parents who abused or neglected the child. More common occasions call for limitations on a parent’s possession of a child. An example of this is when the parent in question has mental illness. Is it really necessary to limit a parent’s possession of the child if his or her mental health is unstable?


Mental Health and Your Possession Order


There are cases when parents battling a mental illness can be ordered to have a very limited possession of the child. In some cases, parents with mental illness can be ordered by the court to spend only one day per month with the child. This is mostly because the court received evidence that the parent has inability to consistently make sound decisions for the best interests of the child. The child’s safety and the parent’s well-being could be in danger.

In such cases, if the said parent refuses to take medications consistently to maintain mental stability, it is likely that the DFPS will intervene. The family’s life could be in chaos due to the parent’s irresponsibility. Danger could be lurking in the corners of the family home as well. The parent with mental issues who is not taking medication is likely to often lash out in anger. The parent could also be indifferent to the children’s condition, refusing to feed or bathe them as well. Other similar cases include drug abuse and suicidal tendencies. This type of home environment is definitely toxic for the growing child that the DFPS will likely remove the child physically from the parent’s care. Unless there is another family member who could provide the care the child badly needs, DFPS will take care of the child for a certain period of time.


What Happens After DFPS Takes the Child From the Parent?


While DFPS will likely care for the child for a long period of time, the next step would be to pass the child on to foster care. The other parent could also have custody of the child if the DFPS finds it appropriate. If the mentally ill parent goes to great lengths to improve his or her mental health and show consistent signs of success in rehabilitation, DFPS can come up with a possession order for both parents to work together in caring for the child. There could be a probationary period wherein the parent with mental issues will have a very limited time with the child according to the possession order. After such period, if there are no issues with the parent battling with mental issues, he or she could regain standard possession of the child.


The Child’s Best Interests


The judge of any court in Texas will always make decisions according to what he or she believes is in the best interests of the child. This is an important point to remember when considering how mental health will affect the parent-child relationship. Under normal conditions, standard possession is assumed to be the setup that is in the best interests of the child. Parents taking part in their natural roles in rearing the child serves in the child’s best interest. The policies in the state of Texas revolves around this.

However, if ample evidence is presented in court to prove otherwise, Texas courts are also willing to consider setting up a different possession arrangement. Aside from the evidence presented, the child’s needs and his or her age will be taken into consideration as well. The other factors that are taken into consideration includes the individual circumstances of the parents.


Deviations From the Standard Possession Order

In case of mental health issues, there is a huge possibility that the court will issue decisions that deviates from the standard possession order. If the parent with mental health issues is uncomfortable about leaving the child in the ex-spouse’s care, a ‘stair step’ would be considered because it will be in the child’s best interest. A stair step means gradually building up a parent’s possession of the child. At first, the court will order very limited possession orders for the parent with mental health issues and as time goes on, the parent can be awarded more time by consistently maintaining mental stability and following court orders to the letter.

Mental health issues are tough to deal with even for those who are not parents. For those who are parents, especially divorced ones, it can be more challenging. If you are having mental health issues, you should fight against it the best way you can. Remember that you are not alone. Your child needs you. And above all, you are not alone in your struggles, and you have the same rights and responsibilities just like any other Texas parent.



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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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