Can Child Custody Arrangements Be Impacted By a Parent’s Health?

woman lying sick in hospital - child custody and parent health concept

When a parent gets sick or injured, they may try to keep that illness a secret from their co-parent, for fear of losing legal or physical custody of their children. While child custody arrangements can sometimes be impacted by a parent’s health, that shouldn’t be cause for secrecy. In fact, being upfront about your disability or disease may help you receive a better outcome in the long run.

Child Custody and Parents’ Health

When Michigan family courts consider entering or modifying child custody orders, they are required to consider the parents’ health. “The mental and physical health of the parties involved” is one of twelve best interest factors each family court judge must consider to determine the custody arrangement that is in the “best interests of the child.” Children’s health, medical care, and special needs are also relevant to child custody and parenting time.

But just because one parent has high blood pressure or allergies doesn’t mean that medical condition will have an impact on child custody. Instead, before the judge can weigh a parent’s health against them, there must be clear evidence of how that health condition negatively affects their ability to function as a parent. For example, whether a person’s sleep disorder may be weighed against them may depend on whether that sleep disorder causes the parent to be unable to get up in the morning to get the children to school on time. If so, it may become relevant to a custody determination.

Can a Physically Disabled Parent Get Physical Custody in Michigan?

If you are a physically disabled parent, this best interest factor might sound intimidating. Parents who use mobility aides, have permanent health conditions that are not being successfully managed with prescribed medication, or who are blind and/or deaf may be concerned that their disability will be held against them in court. They may even wonder if a physically disabled parent could ever get custody under Michigan law.

However, a Michigan Court of Appeals child custody case on parents’ health says that the courts must also consider whether there are reasonable accommodations available that will allow a disabled parent to participate in their child’s upbringing. Often, a disabled parent’s family members may step in to assist with childcare during parenting time. Or if a parent is deaf or visually impaired, they may be able to use interpreters and adaptive technology to allow them to communicate with teachers and doctors about their children’s needs for legal custody decisions. As long as reasonable accommodations can be made and the children’s needs are met, the courts should not deny a disabled parent legal custody simply due to their physical health.

Child Custody and the Mental Health of a Parent

Things get a bit more complicated in cases of mental health. Unfortunately, divorce sometimes brings out the worst in parents and spouses. Often, one or both parties will accuse the other of having undiagnosed mental health issues, including personality disorders such as narcissism and borderline personality disorder. In fact, sometimes the stress of divorce may trigger or aggravate existing mood disorders or mental illnesses. In such cases, spouses sometimes request forensic psychological evaluations to pin a label on the other parent. Typically, forensic psychological evaluations describe both parents’ psychological strengths and weaknesses, but do not include a diagnosis.

When uncontrolled, a parent’s mental illness can have a significant impact on a child’s health and wellbeing. In extreme cases, anger management issues can culminate in physical and/or verbal abuse, while depression can sometimes result in neglect. And a parent’s anxieties or unhealthy coping mechanisms can affect a child’s development or attachment to one or both parents.

However, just like with physical health, having a mental health diagnosis isn’t necessarily enough to threaten a parent’s legal or physical custody of their children. Another Michigan Court of Appeals child custody case addresses when a parent’s mental health condition should not be held against them. The Court should look at whether that condition has been well-controlled for a sufficiently long period of time through treatment, medications, and following doctors’ advice such that the parent’s capacity and disposition to appropriately care for and make decisions about their children should not be weighed against the parent.

The parent claiming that the other parent’s mental health is a problem would need to prove the mental health condition exists, and demonstrate how that condition affects their ability to act as a parent. This can be difficult, because medical and mental health records are privileged and protected from disclosure unless the patient-parent agrees to release them. If the parent refuses to divulge their records, the Court has the discretion to assume the records would be detrimental to their case.

What to Do if a Parent Gets Sick During Parenting Time

Sometimes, child custody arrangements can be impacted by a parent’s health in less severe, temporary ways. For example, if a parent gets sick with a communicable disease during parenting time, it may be wise to make temporary arrangements to prevent transmission of the disease to the child. Similarly, if a parent is injured in an accident, chooses elective surgery, suffers a mental health episode requiring hospitalization or outpatient care, or suffers some other temporary condition, you may need to take steps to ensure the children are appropriately cared for until that parent’s health is sufficiently restored.

Michigan law favors parents who recognize when a medical condition will interfere with their parenting ability. A parent who “voluntarily relinquishes” physical custody temporarily is generally able to restore the previous custody and parenting time arrangement after the illness, injury, or event has passed. The easiest way for this to happen is for parents to temporarily modify custody for the time being, making accommodations for the relinquishing parent’s medical needs. The sick parent may want to make up missed time after they have recovered: remember, it is about the best interests of the child, not the parent. So if make-up parenting time would benefit the child given the schedules and activities of the child, parents should aim for scheduling make-up parenting time. But if the make-up time is aimed at averting a child support modification (overnights can affect child support in Michigan) or simply restoring the status quo for the sake of sticking with a previous agreement, parents should consider letting go of that time when they were unable to appropriately care for, or make decisions about, their children.

If parents can’t agree, the healthy parent may file a motion to temporarily modify custody and parenting time, but they will need to demonstrate the other parent’s health circumstances and explain the need for the court to intervene. Consider the impact this may have on the unhealthy parent and that parent’s need to get better for the sake of the children. If possible, consider using a mental health professional as a neutral party to assist parents in navigating these extremely complicated, constantly changing waters. But if the condition is permanent, or if the unhealthy parent is refusing to receive and/or comply with sufficient treatment, the healthy parent may have little choice but to file a motion to modify custody and parenting time to protect the children and make sure their needs are met.

Child custody decisions are always made on a case-by-case basis, and depend on the best interests of the children involved. When a parent’s physical and mental health are issues in the case, you should work with an attorney who, along with a qualified mental health professional working with both parents, can balance the parent’s ability to separately parent the child knowing the Court will almost always put the protection of the children’s health and well-being above the wishes of a parent. At NSSSB, our Ann Arbor family law attorneys help parents keep the focus on their kids and craft solutions that respectfully address parents’ health and disability concerns. Click here to schedule a consultation with one of our experienced attorneys.

Categories: Child Custody