Custody and Mental Illness

[backwardsbike]

Had to put in my .02.  My Dh is mentally ill.  Bipolar disorder and addictions.  He is well now.  He has been sober for almost five years.  Prior to that time he was undiagnosed and of course unmediacted.  the only therapy he got was D&A treatment.  The average D&A counselor is NOT qualified to deal with a dually diagnosed client!  He current has an excellent therapist who does D&A work as well as ofhter issues.

When we first go together I was able to have joint custody of my kids.  Their dad was getting settled after the divorce.  He wanted to go fishing and was dating up a storm.  The kids sis welland were happy.  He even used me for daycare on his days!  SO I had the kids about 70% of the time.

Well, he remarried.  The new wife wants to be mom to my kids as she messed upher own and wants to have another go.  After all the time the kids were with us 50/50 Dh brings up thr mental illness trump card adn I loose custody.  We now get to see my kids EOW and half of all summer and vacations.

I feel I was burned by the system on this.  First of all, I am not mentally ill although I had to have a $1500 forensic eval of myself to prove so to the judge!  Second of all, my DH is now stable.  Even more so than when we had 50/50.  My ex was allowed to cry "victim" and "danger" without ever having to account for the year and ten months that we shared custody 50/50 with no problems to the kids.

In the forensic reports Dh's condition is outlined in full detail with everything spelled out abput whay can happen during a manic episode.  Yet the psych testing of the other parties is not clearly detailed at all.  When I requested to have the results reviewed by someone other than the professional who conducted the testing the court would not allow it even thoguh te evaluator never gave scaled scores or any other objective measures.  The eval just gave thier own rahter biased opinions on the effect that bipolar can have on a family.  Geesh, my ex is very controlling and manipulatve.  There was no opinion about what the likely effects of that would be on adolescent children.  The eval also interviewed Dh's therapist.  But he did not state what they had said.  Everything was favorable.  But that isn't noted.  What is nothed is that the kids say they saw beer cans lying around my house.  Dh offered to take periodic randon urines but the eval never states that in his report and it was never done.  Yet it was taken as gospel truth that the kids saw all this alcohol around my home.  It never said what the supposed effect on them was.  They see a family counselor with us, they saw a mediator adn thier dad and I saw the mediator at least four times prior to the eval and no one mentioned these mythical beer cans.  But let the kids bring them up and I do not get any more time with them because my DH must be drinking and is therefore unstable and danger to the kids.  The eval never made a child line report even thoguh he is mandated as a psychologist here in PA and we have our own two kids living here full time.

As far as I am concerned forensic evals are a dog and pony show.  My very manipulative ex mesmerises the evals and get away with murder.

Within three months of the eval my DS experienced unexplained weight loss.  Doc diagnosed depression.  Eval said he was so well adjusted.  Well, now he is failing in school- three subjects.  This last evl just wrapped up last August and the evaluator blasted me for not allowing the IEP my son had to be abolished.  I had to fight the dad not the school to keep it.  The evaluator is off the hook scott free after calling me "controlling" for having insited that it remain.

In my very humble opinion forsensic evals are at best a joke and at their worst very harmful.

[BlendedFamily]

The Temp order is all the paperwork that has been filed on both sides if I am reading this correctly, right?

If so, then take the old temp order and file another temp order for custody then follow through with it.

Did DH consult with an attorney yet?

[Lawmoe]

To change custody, you will need more than the fact that the other parent suffers from a mental illness. Mental illnesses are controllable. You must concentrate on its effect on the child.

To seek a change of custody, a Motion must be filed along with an affidavit (a sworn statement) supporting that position.  

If the matter does proceed to court, it is important to understand the standard that the Court will apply when deciding whether to modify the existing custody arrangement.   Different standards apply in different states.  However, there are two common elements.  In almost all jurisdictions:

1.       a parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order;

2.       Additionally, it is generally presumed that the court should retain the current custody arrangement unless the party seeking the change custody demonstrates that it has met the statutory criteria by a preponderance of the evidence.

This is where state laws diverge into three general standards that are applied in different states.

ENDANGERMENT STANDARD

In a minority of states, once custody has been determined, it is very difficult to change.  To do so, the party seeking the change must file a motion supported by evidence that the children are endangered physically, psychologically or developmentally in their current situation.  Courts must also find that the benefit of the change outweighs any harm that would occur by the change.  Obviously, this burden is very high and requires that the moving party have a significant amount of new evidence since the last custody order was entered to support their case.  Any incidents or information predating the previous custody order is largely irrelevant unless it can be tied into a pattern related to more recent conduct.

Some evidence supporting endangerment claims may include:

1.       Police Reports.  Police reports showing numerous disturbances at the custodial parents home can be a sign of instability and may support a change of custody. This is particularly true if the children were present at the time of the disturbances

2.       Criminal Records.  Criminal offenses that endanger the children or that leave them without supervision can also be used as powerful evidence in any motion to change custody.

3.       Child Protection Reports.  Reports of abuse or neglect relates specifically to the care of the children and are often the strongest possible evidence for a change of custody where the negligence or abuse has been substantiated.

4.       School Records.  School records showing significant absenteeism, behavior problems  or falling grades cans support claims of instability ion the child's custodial home.

5.       Counseling Records. Counseling or psychological records may reveal problems in the home that lead to symptoms of poor socialization, development or depression issues.  

6.       Medical Records.  Medical records related to injuries may point to a general lack of care and attention by a custodial parent.  

BEST INTERESTS STANDARD

A majority of states use a "best interests of the child" standard when determining whether to modify existing custody arrangements.   That means the Courts will look at all circumstances affecting the child and determine whether a change of custody is in the child's best interests. Even under this standard there is generally a presumption to retain the current custodial arrangement.  When applying this standard, the Court is often guided by specific factors to consider set out in the family law code.  Some factors may include:

1.       The wishes of each of the parents;

2.       The physical and psychological capacity of each parent to provide care for the child;

3.       The desires of any child who is of a suitable age and maturity to express a desire;

4.       The residential and employment stability of each parent;  

5.       Where there have been any incidents of neglect or abuse;

6.       Each parents past history of providing care for the child which is often referred to as determining the child's primary caretaker.

7.       The child's relationship with siblings or other in home family members including potential second family members.

8.       The ability of the parents to communicate and cooperate on child rearing issues;

9.       Each parent's willingness to facilitate and encourage the child's relationship with the other parent.  

10. The child's adjustment to home, school, and community;

11. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

One of the most common questions asked is when a child can decide where they will live.  In almost all states, the child's wishes are only one factor out of many and are never dispositive with regard to the issue.  However, as each child matures, their wishes will carry greater weight in contested custody proceedings.  There is also one notable exception to the rule.  In the State of Georgia, it is presumed that a child age fourteen (14) or older can decide where they will reside.  Even that presumption, however, may be rebutted with contrary evidence.

HYBRID APPROACH

In order to discourage parents from constantly litigating custody, some states use a hybrid approach which makes it more difficult to change custody shortly after a custody order has been entered.  In such states for a certain period of time after a custody order has been entered (generally one or two years),  any motion for a modification must show not only a change of circumstances, but also that the child is endangered by the child's current environment.  After expiration of the one-or two year period, the standard is reduced to a review of what is in the child's best interests.  

CUSTODY EVALUATIONS

If a Court hears a motion for a change of custody and believes as a result that there may be a basis for the change, it may require a custody evaluation performed.  How each parent presents their issues in the custody evaluation can be a critical part of the cases success or failure.