You may not realize this, but your mental health may not be private in divorce and it could be used to restrict your parenting time.
That’s a counter-pull to the current initiatives in our society. We’re being encouraged to talk openly about, accept, and destigmatize mental health issues. We’re being urged to seek help and treatment for our issues.
And, when we do access help, we expect that to given in confidence. There’s a patient-physician privilege to protect us. That’s there to create an environment that cultivates trust and honesty which is fundamental to successful treatment.
But in parenting disputes, that privacy can be broken. The fact that you’ve sought treatment can be used against you.
So, what can you do to prepare yourself? What can you do to protect yourself?
Joining me for this Conversation About Divorce is New York-based family law and matrimonial attorney, Lisa Zeiderman. Zeiderman is the managing partner at Miller, Zeiderman and Wiederkehr and her work on this topic has appeared in Psychology Today.
***This Conversation is focused on mental health issues and parenting in divorce. It does not discuss the concerns that severe mental health issues can create around a person’s competency to make decisions for themselves, Nor does it address a person’s ability to fully participate in divorce negotiations.
Why Is Mental Health A Concern In Divorce?
When parents are not able to voluntarily agree on shared parenting, then they are essentially asking the court to determine what is in the best interest of the children. That means determining which parent is in the best position to make decisions for the children, and what access should be given to each parent.
“All of that centers sometimes around a party’s mental and/or physical health,” said Zeiderman. “It usually is their mental health that is called into question, as well as addiction issues such as substance and alcohol issues.”
When Zeiderman knows her client’s STBX has had mental health issues, then they will routinely request copies of relevant documents. That includes hospitalization records, notes from doctors or therapists, details of medications prescribed, for example.
This is not limited to addiction concerns. It would also include issues such as bipolar disorder, anxiety and borderline personality disorders, for example. These conditions must be examined because they can have far-reaching effects.
“That does affect a parent’s ability not only to make decisions for their child, to have access with their child, to be able to utilize information from providers for the children, but also to parent,” said Zeiderman. “If a parent has, for example, a borderline personality disorder, we often find that that parent will have significant issues co-parenting.”
How Do Mental Health Records Get Handed Over?
We’re not giving legal advice here, and the exact process will vary by state, however generally, no one is going to hand over these records without being required to by law. That means attorneys may have to subpoena the records.
The other way this information becomes available is when a forensic psychologist or psychiatrist is appointed to evaluate each parent. As part of their investigation, they will request these records.
You could refuse to authorize the release of the records but that may not be the end of it. The judge in the case will make the determination as to what records are relevant, and who will get to see them.
If the court does appoint a forensic mental health professional, then know that both parents are going to be evaluated, not just one.
Do Mental Health Records Become Public Information?
Most of us don’t have to worry about our mental health records becoming public information during a divorce because Zeiderman says they are essentially closed records. The court will set restrictions on how the records can be distributed, where they can be viewed, who can view them and also if copies can be made.
“Eventually, it is highly likely that your spouse will be privy to the records, as well as their attorney,” said Zeiderman.
Public figures and celebrities are different.
With high profile divorces, (Brad Pitt and Angelina Jolie was a particularly ugly one) the court proceedings may be covered by the media. In this situation, health details that are disclosed during the proceedings can and do become fodder for gossip.
Having A Mental Health Condition Doesn’t Mean No Custody
When the court is assessing mental health issues, it isn’t about the mental health issue itself but more about assessing what the risk is to the children when they are in the sole care of that person.
That means having a mental health condition like bipolar disorder or anxiety doesn’t preclude a person from getting custody of their children or from sharing custody. It does mean that the person with the mental health condition needs to own it.
“They need to be consistent with their therapy,” said Zeiderman. “They need to be consistent with the medications that are being prescribed. They need to actually follow the directions of the therapist.”
The parents who are going to have trouble are those who are not compliant, and who try to hide their issues.
Shared Custody Means Building In Safeguards
There are many different safety measures that can be put in place that can make it possible for someone with mental health concerns to be with their child safely. However, you likely wouldn’t know about these if you haven’t talked to an experienced professional.
What’s important to understand is that this isn’t usually an all or nothing solution. Nor is it isn’t a one size fits all. It’s about understanding the condition, understanding the risks to the children and then developing a safety net.
Zeiderman has crafted agreements that incorporate blood-testing to ensure that a party is taking the medications that have been prescribed. There are a number of options available for protecting your children from an alcoholic parent.
“We have also made sure that both spouses are able to contact the treating psychiatrist or psychologist if they think there is an issue,” said Zeiderman. “And that the treating psychiatrist or psychologist also is allowed to reach out to the other parent if there is a concern.”
Supervised visitation is another option. It’s used when a mental health condition is not being treated, the person is not cooperative, the disorder is not as treatable or doesn’t respond well to standard medications.
In a small percentage of cases, there may not be appropriate safeguards.
“There are cases where people will just not recognize that they have a particular disorder or a particular addiction and there are such safety concerns that even with supervisors present, it just can’t work,” said Zeiderman. “That [parenting] time may be extremely limited and sometimes suspended until that person is actually being treated and is able to conduct himself or herself appropriately.”
Using Your STBX’s Mental Health Against Them May Backfire
Let’s face it. Divorce brings out the worst in most of us. There are inevitably times when we know we’re not responding in the most noble way. There will be times when you’ll motivated by revenge and wanting to get even.
People do sometimes seek to restrict parenting time to be vindictive. Zeiderman is on the watch for this. She looks for how her client interacts with their STBX, the content of email and text messages and comments they share. By the end of the first consultation, she’s confident she has a good sense of her client’s motivation.
It’s important to understand that utilizing your STBX’s mental health may not help you.
“The courts feel very strongly about the fact that a parent who is going to be the custodial parent or the primary parent should be able to foster a relationship with the other parent,” said Zeiderman. “We caution our clients that they need to remember that their children are products of both parents. When they criticize or when they are being vindictive to the other parent, they are also being vindictive to the children because those children are made up of both parents.”
Get Experienced Legal Counsel
The trend is towards getting divorced without having full legal representation and sometimes, with no legal advice whatsoever. This, however, is absolutely not a situation where you should be considering this. And here’s why:
- Your attorney will be able to advocate on your behalf in a much more calm and reasoned manner. That matters in correspondence with opposing counsel. It also matters in every hearing with the court.
- Your attorney knows legal procedure. This eliminates the risk of you unintentionally not following court rules and suffering negative consequences.
- Your attorney will be able to help you put together a parenting plan with the safeguards that are most appropriate for your situation. If you and your STBX can agree on this, that’s the best possible outcome. If you can’t, then the court has a detailed proposal to evaluate and take into consideration in the eventual ruling.
The key here is to find an attorney who has experience dealing with the specific issues in your case. When you are interviewing potential attorneys, don’t accept ‘yes, I’ve handled that’ as an answer. Rather, asked a focused question like, ‘Can you tell me about a case you’ve handled where one party was diagnosed with bipolar disorder and the safety precautions you built into the parenting plan?’ Then listen carefully to the response.
Money for legal fees is often a hurdle to hiring experienced counsel.
“Sometimes the non-moneyed spouse will be able to ask for legal fees from the moneyed spouse,” said Zeiderman. “If there is absolutely no money on either side, then people have to look for a source. Many times, that is where family members or friends come into play.”
Most Important Thing You Can Do? Be Honest
Being in a custody battle will make anyone feel defensive and vulnerable. Having a history with mental health conditions will compound those feelings. It’s not surprising you’d want to downplay your history. But trying to hide your conditions from your attorney is going to hurt you.
“My advice would be to be honest about your mental health condition because the court appreciates honesty,” said Zeiderman. “The court also appreciates people who are working on their mental health conditions and working with therapists.”
My guest for this Conversation About Divorce is New York-based family law and matrimonial attorney, Lisa Zeiderman. Zeiderman is the managing partner at Miller, Zeiderman and Wiederkehr and her work on this topic has appeared in Psychology Today.