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Does a Parent's Mental Health or Drug/Alcohol Abuse Issues Play a Role in Determining Child Custody?

In extreme cases, such as with suicidal or homicidal ideations, mental health may obviously play an important role in determining child custody. However, the courts may order evaluations or assessments in less extreme cases.

I have had numerous cases where my client has indicated that the other parent is suffering from depression or anxiety as a result of the divorce or separation. They indicate that they are being treated by a family physician and take Zoloft, Lexapro, Celexa, Prosac, Ambien, Clonopin or one of the many other anti-depressant or sleep aid drugs that are on the market. There is a stark difference between individuals that have "situational depression" or anxiety and are being treated with a prescription medication as opposed to someone who has a history of hospitalizations or actual attempts at suicide. There is little or no issue with those who are being treated and are doing well on the pharmaceuticals prescribed by their doctor. We all have experienced a crisis in our lives, such as divorce or child custody litigation.

What Can the Court Do If There's a Real Concern?

First, asking the Court to intervene in a custody matter and ordering the other party to take a mental health assessment or drug/alcohol evaluation should not be taken lightly. If you were aware of their issues when you had kids with them and, in fact, raised them until recently with all of these issues, the Court will not look favorably on your posturing come custody trial time. Don't put someone through ludicrous allegations of drug use or extreme mental health problems unless you're actually concerned for the health, safety, welfare and best interests of the child(ren). They will likely reciprocate by asking that you do the same assessments and evaluations. It will invariably cost you both a lot of money.

In a proceeding for the custody, partial custody, or visitation of children, the court may order the child or children and/or any party to submit to and fully participate in an evaluation by an appropriate expert or experts. The order, which must be substantially in the form set forth in the Rules of Civil Procedure, Rule 1915.8, may be made upon the court's own motion, upon the motion of a party with reasonable notice to the person to be examined, or by agreement of the parties. The order must specify the place, manner, conditions and scope of the examination and the person or persons by whom it will be made and to whom distributed.

In entering an order directing an evaluation, the court must consider all appropriate factors including the following, if applicable:

  • The allocation of the costs, including insurance coverage, if any, attendant to the undertaking of the evaluation and preparation of the resultant report and court testimony of any appointed expert;
  • The execution of appropriate authorizations and/or consents to facilitate the examination;
  • Any deadlines imposed regarding the completion of the examination and payment of costs;
  • The production of any report and of underlying data to counsel and/or any unrepresented party upon the completion of the examination; and
  • Any additional safeguards that are deemed appropriate as a result of the alleged presence of domestic violence and/or child abuse.

They were hospitalized last year- Can We Get Those Records?

Generally, a party may not seek and obtain the psychiatric or treatment records of another party, unless that party waives their right to allow the physician or treatment specialist to disclose the records. This is so because patient records are privileged documents and a doctor, therapist, psychologist or treating party may not release them without either a patient's express written consent or a court order directing them to do so. Further, there is no right of 'discovery' in child custody cases without a court order or the joint agreement of both parties. Rarely, if ever, do courts order discovery in the average custody case.