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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