Having Mental Health Problems While in a Custody Battle


One of the most difficult matters that a married couple will deal with is divorce and consequentially, custody battle. For whatever reasons, it will certainly be a tough time not just for both of them as individuals but also for the child. A spouse having a mental illness, however, will aggravate and make these situations even more complicated.

The primary focus of attention in every custody case is the child’s welfare. Though the courts allow both parents to share, the court will likely to award sole custody to one parent when it sees that one parent is unfit to take care of the child. One particular instance is when a parent has mental health issues because courts perceive such as a disadvantage. This rule is not absolute and is a case-to-case basis because it depends on the severity and treatment of the illness.

Mental illness is a factor to constrict or enjoin custody rights in Texas. A party in a custody case must bring up the condition of this  other spouse in court. This can affect the court’s decision on who gets primary custody. As early as possible, he or she must inform his or her lawyer about it and seek a clinical diagnosis from a physician or mental health professional.

Pieces of Evidence to Consider

A judge determined the mental condition of a parent and its impact on the child’s development through pieces of evidence, to wit: history of violence amongst family, history of child neglect and/or physical/sexual abuse, criminal records, substance abuse, sexual conduct and earning capacity.

Setting Boundaries

Significant restrictions are placed if there is a mental health issue. For example, he or she can only visit his or her child once on weekdays and weekends. Substance abuse problems may call for certain rules in order for the parent not to use those in the child’s presence. The court will lift these limitations upon proof that the parent is no longer ill.

Going to Extremes

Judges may outright terminate parental rights as a last resort. Texas law provides that these criteria must be met before custodial rights of a parents may be abated:

  1. The mental instability would make it impossible to provide for the child’s needs (physical, emotional, and mental);
  2. Illness is permanent;
  3. The child has been removed from the parent’s care for at least six months;
  4. Reasonable efforts have been made by the State to return the child to the parent’s care; and
  5. Termination is considered for the best interest of the child.

At the end of the day, fighting for rights over a child is a rough ride. The parent must ensure that his or her mental health is of utmost importance. For how can he or she look after the child if he or she cannot take care of himself or herself?

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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.

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