Has your mental illness affected your custody rights?

If a parent is diagnosed with lupus or diabetes, it shouldn't affect their custody of their children. However, if you are a parent living with a mental illness, you face custody loss rates of as high as 80%.

In fact, under Sec. 7824 of the California Family Code, parents with "any physical or mental incapacity which renders the parent or parents unable to care for and control the child adequately" could lose custody of their children.

Statistics on parental mental illness

Two-thirds of kids in the United States who have a parent suffering from serious mental illness aren't being reared by that parent. When mentally ill parents need emergency psychiatric hospitalizations, grandparents or other relatives typically step up as caretakers. When that is not possible, some children will enter the system as foster children.

The state seeks to retain kids in the same family unit with a competent adult relative whenever possible, but it cannot create fit familial caretakers out of whole cloth. When children of mentally ill parents are separated from their parent, there is no guarantee of reunification.

Can you regain custody?

Parents must first regain control over the mental health issues that led them to lose custody in the first place. That might mean returning to therapy and taking medication that controls their conditions.

Mentally ill parents may have quit being compliant with medication schedules due to the unpleasant side effects of the medicines. Some medications that treat mental illnesses cause weight gain, tremors, gait problems and involuntary facial movements. It's no wonder that patients don't want to take them. However, when those medicines and compliance with other treatment goals are what stands between a parent and custody of their children, it may be necessary to accept those side effects.

What mentally ill parents must prove

After a custody loss due to mental illness, the parent must prove that the children are safe in their care and that they are able to safeguard their children from harm and meet all of their needs. Sometimes a parent may only be able to do that with supportive aids, and this will also factor into any custody decisions.

In some cases, a court may order that the mentally ill parent only have supervised visitation with the child until the parent's mental illness no longer affects their parenting abilities. A family law attorney can provide important guidance.

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