The shared custody has become the preferred solution by the Supreme Court in case of divorce or separation with children, over single-parent custody.
Even so, many judges still opt for single-parent custody, which should be established when it is the most beneficial option for the child, always putting the best interests of the child first.
But what circumstances can prevent joint custody?
And, specifically, what does having a mental illness mean in terms of child custody? The most important thing is to appreciate that
each case is different and that, therefore, there are no universal solutions in this field:
the variety of mental disorders and conditions that we may experience and their degree of influence on our day-to-day lives has a lot to do with whether or not joint custody is granted, and medical reports are key in determining the appropriateness or otherwise of this regime. For example, there are disorders considered serious by the World Health Organization (WHO), such as schizophrenia and group of psychotic disorders, bipolar disorder and group of major affective disorders, personality disorders, or obsessive compulsive disorder (OCD).
Others, such as depression, stress or anxiety, may not be so serious and do not require medication or psychiatric treatment and can be treated by a psychologist. On this basis, we can use examples that have already been collected by judges to assess the possibilities of fathers and mothers suffering from mental illness, although, we insist, we can never compare one case one hundred percent with another.
Serious mental illness and joint custody: What does the Supreme Court say?
There is a relatively recent judgment of the Supreme Court, dated March 27, 2018, which refers to a case of severe mental illness.
Specifically, a bipolar disorder suffered by the mother, a case in which the father requests single-parent custody for himself . In this case, from which we can draw conclusions applicable to other similar cases, both the father and the mother requested sole custody, and the first instance judgment granted custody to the father.
The judge based his decision on the fact that this option offered “greater guarantees for the welfare of the child” . The sentence considered it proven that the mother suffered from bipolar disorder and that she had been hospitalized for it, a period in which she needed help from her parents to care for her son, but that she was now stabilized and following the prescribed treatment.
Even though she was fit to care for her son, the judge opted for parental custody, among other things, because each parent resided in a different town, which made joint custody difficult.
In response, the mother appealed the decision, requesting maternal custody and, alternatively, joint custody.
The judgment of the Provincial Court opted for joint custody, based on the fact that the father, in the trial of first instance, assured that he was willing to organize his work so that he could live alternate weeks in the town where the mother lived, and that the mother had more free time – due to her work schedule – to take care of the child. In addition, the sentence ordered the mother to submit to the court every quarter a report from her treating psychiatrist on the monitoring and control of her bipolar disorder. Faced with this decision, the father filed an appeal in cassation alleging that the appealed judgment violated the principle of the best interest of the child by establishing shared custody, considering that “It is a risky situation for a 5-year-old child to live with his mother, affected by a mental illness such as bipolar disorder, taking the child out of the environment in which he was born and raised”. He requested, therefore, sole custody for himself, opposed by the mother, who also requested sole custody for herself.
The Supreme Court, in response, assures that the Court can only examine whether the judge correctly applied the principle of protection of the interests of the minor and, in this sense, this interest has been protected in a justified manner.
The sentence emphasizes that the interest of the minor “is above the appellant parent, as stated in the proceedings, his offer to move to Castellón, where he has already resided”.
The Supreme Court concludes, therefore, that “the Provincial Court has decided in the best interests of the child taking into account the circumstances”, without special mention of the existence of a bipolar disorder, since the reports of the first instance made it clear that the mother could take care of her son.
Therefore, joint custody is possible in the case of a serious mental disorder, as long as the reports show that the parent is capable of acting as such.
It is also possible that the need for periodic monitoring of the psychological or psychiatric evolution of the affected person is also ruled, as in this decision of the Supreme.
Mental illness of the child: Does it affect custody?
There is another assumption that must be taken into account and that can influence custody: the existence of mental illness of the child.
Also for this case we find a fairly recent Supreme Court judgment, dated December 12, 2018, which analyzes a case of this type and confirms the criterion of the first instance judge, who awarded single-parent custody to the mother, by reasoning that this regime, existing since 2012, had “worked and benefited the minor, who suffers from ADHD, being the most convenient for him, not to introduce changes” . The Supreme thus concludes that the appealed judgment would comply with the requirement of correctly applying the principle of the best interests of the minor.
The background in this case is as follows: the father, who is the one appealing before the Supreme Court, requested, through a procedure of modification of measures, joint custody, opposed by the mother.
The first instance judgment dismissed the claim, in the interest of the children, on the grounds that the report issued at the time by the psychosocial team proposed maternal custody, as she was the one who best met the needs of the children . In addition, the sentence took into account that the diagnosis of the minor – ADHD -, alleged by the father as justification to urge the modification, already existed in the previous proceeding, and had been attended since then by the child mental health service, with favorable evolution.
The judge assured that had not been accredited that a change of custody would benefit the child more, and referred to the situation of stability enjoyed by the child, “as it resulted from the examination”, and therefore agreed to maintain the maternal custody. The father appealed the sentence, and his appeal was dismissed, the court basing its decision precisely on the following grounds it is not a normal and ordinary case, in which joint custody can be attributed, since “changing the system would be to destabilize the rhythm of life of the child by the sole will of the father”. Therefore, the Court understood that the child should be protected,
providing him/her with the greatest stability, which is achieved without changes and without disagreements.
We see that also in these cases the most important thing is the assessment of the professionals as to the mental health of the person concerned: this will determine the way the judges proceed, operating on the basis of the interests of the child above any other principle. principle.
If you need help in any case related to shared custody in case of mental illness, or Family Law in general, contact our lawyers without obligation: we will be happy to guide you.
