Mental Issues, Family Violence and Custody

Many divorce cases can get contentious, especially with the issue of custody. No two divorces are alike, and despite Texas law trying to issue clear directives for many different scenarios, there are always grey areas that seem to have no definite answer. This is when the wisdom and prudence of the judge is placed at the forefront.

How Mental Issues Affect Custody

Mental illness has only been placed in general public awareness in recent years, and no two conditions are exactly alike. This makes it very difficult for the judge to determine custody and visitation rights when one of the parents has mental issues. Even precedents or expert psychological opinions can really determine how a person with mental illness will behave.

Texas law will always try to uphold parental rights. Thus, as much as possible, the judge would want both parents to have time with their children. However, the State of Texas has to decide in the best interests of the child. The safety and welfare of the child take priority over parental rights.

The judge has to consider the age and maturity of the child. Is the child still wholly dependent on the parent? If yes, the next question is whether the parent would be able to fulfill the needs of the child despite his mental illness.

Certain conditions like schizophrenia, depending on the degree, will not only render the parent unable to respond to the child’s needs, it may even be a threat to the child’s safety. In cases when the child could be in danger, there is a huge chance the judge will not award custody.

As such, the judge may assign psychological and psychiatric evaluations to aid their decision. You and any other concerned party should cooperate.

Family Violence

In the case of domestic violence, there is no question that the child’s safety is at risk. If one spouse seeks to gain more visitation rights and time with their child, then the judge will need to have proof that the person is already stable and able to keep their cold and control their anger.

The judge will have to order any tests, and this may include the triggers of violence which could include alcohol or drugs. If there is an ongoing case of domestic violence against any party, then the judge will unlikely to grant it.

For mental illness and violent tendencies, there are many factors that are unpredictable. In this case, the judge will only concentrate on what can be determined, and if they need to judge based on possible behavior,  the judge will err on the side of the child’s safety.

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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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