The danger of rushing into custody agreements with the seriously mentally ill or substance abusing

Folks hire family law attorneys not only expecting to have their domestic disputes resolved, but expecting them to be resolved quickly and inexpensively. The method to accomplish this is to reach agreements. Thus most litigants want their attorneys to be thinking settlement early in the process.

For most domestic disputes this is a reasonable expectation. I can be ready to negotiate spousal support as soon as I understand the parties’ income and expenses. I can be ready to negotiate child support as soon as I have information to run the child support guidelines. I can be ready to negotiate property division as soon as I understand the value and acquisition of the parties’ assets and debts. Even custody is often amenable to early resolution if both parties merely want the status quo to be formalized: often it’s simply a matter of transitioning the division of parenting responsibilities from a common household to separate households.

But experience has taught me not to negotiate final resolutions on custody and visitation with parents who have serious mental health or substance abuse issues until I have lived with the case for months–the one exception being when these parents agree to a final order that provides them no set visitation or visitation solely at my client’s discretion. To reach a final resolution on visitation with such folks early in the litigation process is to almost guarantee future chaos for my client. Given that clients who have attempted to co-parent with a substance-abuse addled or seriously mentally ill parent come to me because they are exhausted by the effort, a desire for a quick resolution is very understandable. Unfortunately it is the case least amenable to one.

There are two reasons for this. The first is that the other parent has often minimized or hidden the level of his or her mental illness or substance abuse from my client. Lying is endemic when these circumstances exist. While my client may think he or she understands the other parent’s issues, experience teaches me that the situation is almost always worse than my client thinks. I will want my client to have full knowledge of the other parent’s situation–which often requires substance abuse testing or psychological evaluations, and sometimes requires discovery–before we even begin negotiating.

Further, such clients have often spent years in an unhealthy co-parenting dynamic. Often they have left the child in the care of the other parent while harboring serious concerns over the child’s safety. This dynamic needs to end for the parenting chaos to end. Other times they have attempted to control the other parent’s behavior in an attempt to protect their child. These clients need to let go of their illusion of control and stop taking responsibility for the other parent’s behavior before they can achieve internal peace.

The second reason is that custody litigation should be a catalyst for a substance abusing or seriously mentally ill parent to get treatment. The six month period after the commencement of custody litigation provides telling information about the other parent’s commitment to getting healthy. For the addicts and mentally ill there is no straight path to recovery but ideally there will be substantial forward progress in that six month period. Whether there has been progress, and how much progress, should guide the other parent into what a reasonable visitation agreement might entail.

Any such agreement should contain provisions allowing the client to monitor the other parent’s mental health or substance use. Typically when reaching a custody and visitation agreement with a party who suffers from serious mental illness, I will demand a provision requiring that parent to remain in treatment until released by their mental health professional and to sign a release allowing my client and the treating professional to discuss any concerns over that party’s mental health. When reaching an agreement with a parent who has a history of substance abuse, I will demand my client have the right to seek testing (at my client’s initial expense) upon request, with a consequence for a failed or delayed test. However such protections are not failsafe. Many mental health professionals are reluctant to provide information that invades patient confidentiality and no family court order can require such professionals to be forthcoming. For substance abuse testing, no test is 100% accurate and custodial parents’ fears of false negative results can neither be dismissed nor alleviated.

Some mentally ill or substance abusing parents will make no progress in addressing their issues during the six months after litigation commences. For such cases, many attorneys might suggest an order of permanent supervised visitation. For reasons explained here I am not a proponent of permanent supervised visitation for substance abusing parents or parents with treatable mental illnesses. Experience has taught me that the only way for my clients to avoid chaos in co-parenting with parents suffering from untreated substance abuse or serious mental illness is to give that client complete control over the other parent’s contact with the child.

A few mentally ill or substance abusing parents will make substantial progress in addressing their issues during the six months after litigation commences. Such parents might be able to resume their prior level of involvement with the child–or have even greater involvement with the child–so long as the conditions listed above are put in place.

And most mentally ill or substance abusing parents will make some, but limited, progress in addressing their issues during the six months after litigation commences. For this (common) circumstance, there is no one-size-fits-all solution. The seriousness of that parent’s substance abuse or mental illness, the child’s ability and comfort level in interacting with that parent when that parent isn’t fully healthy, and the level of progress that parent has made in the six month period are just some of the factors to consider in fashioning a visitation agreement. However such agreements are much better tailored to the facts and circumstances of that particular case at the end of the six months than at the beginning of litigation.

The desire of parents who have co-parented with someone suffering from substance abuse or serious mental illness to find a resolution that allows them peace is completely understandable. Unfortunately, for the reasons explained above, it is the worst type of case for speedy resolutions.

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  • As always Gregory’s blogs are excellent, and this one is no exception. I’d like to expand the discussion for situations that might not be amenable to rapid custody/visitation resolution to include families in which there is one parent who might be engaged in toxic, pathological estrangement and/or alienation of the children from the other parent. This requires careful examination, monitoring and understanding by well trained professionals. A professional that can assist with that long term monitoring is called a Parent Coordinator. This is a mental health professional specifically trained to work with high conflict couples and educates couples and other professionals in special issues such as domestic violence, substance abuse, parental alienation, communication problems and mental health issues.

  • I always enjoy Mr. Forman’s blog….this one caught my attention as it is a common issue I see in my practice. I think there is a silver lining to the fact that resolutions in cases involving a high conflict parent are the opposite of speedy. Individuals with substance use disorders and mental illnesses cannot sustain “good” behavior for more than a few months. Add in the stress of being under the magnifying glass, legal fees and overall stress of litigation time can reveal key psychological impairments such as poor insight, unmanaged emotions and poor parenting decisions. I think Ms. Wheeler’s suggestion of parenting coordinator would be excellent if ordered by the court in high conflict custody disputes.

  • Brian

    Incredibly informative, as always. One sad issue that can arise is when a mentally ill parent avoids being held accountable for their actions and a court turns around and doubles the mentally ill parents parenting time with vulnerable children. Perhaps South Carolina should place protections in their code to protect children from such individuals. Such issues as psychological abuse and financial abuse seem to leave many citizens at risk. A parents right to parent should never trump a child’s right to be protected.

  • Bill Clifford

    Insightful. Sometimes teasing out mental health issues beyond the obvious addiction and serious parental psychoses requires a longer period of time
    than ordinary discovery provides. This is particularly true if there are mental health professionals with competing views. A recent case I dealt with it involved a custody evaluation of both parents and the children at the Medical University. After completion of a 59 page report, and after receiving notice of a potential dismissal arising from 365 days having run there still was not definitive diagnoses but a recommendation of a trial custody arrangement and four months later a reevaluation for a more permanent recommendation.
    Bottom line: Greg’s right but unfortunately the 365 day rule elevates docket consideration above children’s welfare. It should be abolished or modified to preserve child protections.
    Thanks for your blog; they are always good intellectual grist.

    • You can alway ask the court to extend the 365 day requirement for “good cause shown.”

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