By Stephen R. McDonnell, Esq. On July 11, 2022, Pennsylvania passed Act 68, which limits…
By Kelly A. Jurs, Esq.
The COVID-19 pandemic has resulted in a rise in mental illness and increasingly severe actions taken by those suffering from it. This increase in mental health concerns is playing out more and more frequently in family court, as parents address their mental health, their co-parent’s mental health, and the mental health of their children. So how does mental illness in your client, in the opposing party, and in children affect the Court’s rulings on child custody and analysis of what is in the best interests of the child?
The Custody Factors and Mental Health
Pennsylvania courts review and balance 16 factors when they analyze what is in the “best interest of the child” for custody. Factor 15 directly addresses the mental and physical condition of a party or a member of a party’s household.
Beginning with custody conciliation, a Conciliator will raise the issue of the parties’ mental health concerns and how they are being addressed. How the mental health issue has arisen will impact the Court’s analysis. For example, if a client has a chronic condition or diagnosis, but is and has been managing it through therapy, medication, and healthy practices, the Court will generally look favorably upon the steps the client has taken and will factor that stability into their decision. If, however, a matter has come to the court under an Emergency Petition for Custody for a crisis that has occurred with one of the parties, it will be more inclined to decrease that party’s custodial time until the crisis is resolved and stability is re-established and maintained.
How to Help Your Client
If your client is suffering from mental illness, the first — and most important — step is to get them into treatment, if they are not already. Whether this involves regular talk therapy, medication, or less traditional forms of therapy, the Courts want to see that a parent is taking their mental health seriously and working to maintain it. If a client is not already in treatment, this can be a difficult proposition, particularly if the client is minimizing any disorder they might have. As counsel, you must impress upon the client the importance of taking their mental health seriously, not just for the client’s sake but for the child’s sake. The Court will not award custody or increase custody for a party with a demonstrated mental health disorder if they are not actively engaged in treatment for that disorder, particularly if that disorder is interfering with the party’s ability to parent.
One thing to be especially cautious about when it comes to mental health assessments ordered by the Court is to make certain that your client follows the Court’s instructions specifically. Often, clients will assume that an assessment by their current therapist will satisfy any conditions of the Court. This is often not true, and the Court will have an independent group that they will want to have perform an assessment. The Court may also have a preference as to whether a client should see a psychologist versus a psychiatrist. Whatever the condition imposed, and even if it appears to be redundant, the client must get whatever assessments and/or treatment may be ordered by the Court.
How to Address a Co-Parent with Mental Health Issues
The best interest of the child is the legal baseline for the Court’s assessment and is of primary concern with regard to the child’s mental health. As with your own client, if an opposing party is neglecting their mental health, the Court will take that neglect seriously. As counsel, you will want to request documentation of any current mental health treatment, including current records of therapeutic sessions and medication, if there are any. If the disorder is chronic, you will also want to request past treatment records, to track whether the opposing party has been consistently maintaining treatment or whether any particular triggers jump out. These are issues that you can address with the Court at conciliation or within co-parenting counseling.
Co-Occurring Mental Health and Substance Abuse Disorders
When analyzing what is in the “best interest of the child,” Pennsylvania courts consider Factor 14, which addresses the history of drug or alcohol abuse of a party or a member of the household.
A recent study showed that during COVID-19, participants reported consuming alcohol on an average of 12.2 days and 26.8 alcohol drinks over the past 30 days. Over one-third (34.1%) reported engaging in binge drinking and 7% reported engaging in extreme binge drinking. Those participants, who reported being very or extremely impacted by COVID-19, consumed more alcohol (including both on more days and more total drinks) in the past 30 days. Moreover, nearly two-thirds of the participants reported that their drinking had increased compared to their consumption rates prior to COVID-19. Reasons for this increase were increased stress, increased alcohol availability, and boredom.
The Court is well aware of these trends. Attorneys in multiple practice areas are reporting significant increases in incidents of substance abuse and the severity of mental illness among their clients. Treatment for substance abuse must be addressed, particularly if drugs and/or alcohol are being used by a client to self-medicate for mental illness.
Tools to Help Cope with Mental Illness for Parents and Children
It should be noted that while the most important step in coping with mental illness is recognizing the issue, finding therapeutic options is also key – and that is a major hurdle at this point in the pandemic. Many therapists are currently overwhelmed with clients. If you don’t already have a resource to offer clients, attorneys and clients can draw upon the respective county websites for Chester, Delaware, and Montgomery. Each site enables you to search the term “mental health,” and you’ll be directed to county resources for therapy or for those in crisis.
On a broader level, the federal government is working to implement a nationwide mental health hotline 988, instead of 911, to provide more nuanced help and support for those experiencing a mental health crisis. The number is expected to go live on July 16, 2022 and will connect callers to the National Suicide Prevention Hotline.
Regardless of the diagnosis, and whether there are co-occurring substance abuse issues, to protect the interests of your client in a custody case it is vital to identify any mental health issues. While you cannot force a client to engage in treatment, you must make them aware of how the Court will view a lack of engagement and work with them to establish a treatment plan. An effective treatment plan will not only help your client personally, but will strengthen their position in custodial matters.
With 15 years of litigation experience in the Chester County Court system, attorney Kelly A. Jurs practices in family law as well as criminal defense at Gawthrop Greenwood, PC in West Chester. She is a member of the Pennsylvania Council of Mediators. Contact Kelly at firstname.lastname@example.org or 610-696-8225. https://gawthrop.com
Reprinted with permission from the June 14, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.