Geva on Parental Mental Health and Child Custody

Just out: Anat S. Geva, Judicial Determination of Child Custody When a Parent is Mentally Ill: A Little Bit of Law, a Little Bit of Pop Psychology, and a Little Bit of Common Sense, 16 U.C. Davis J. Juv. L. & Pol'y 1 (2012).  The abstract:

In adjudicating child custody, the court weighs multiple factors to determine the best interest of the child. Most state statutes and court decisions in the United States permit judges to consider the factor of parental mental health. To answer how judges consider this factor when adjudicating child custody, 17 judges who oversee child custody determinations participated in semi-structured in depth interviews conducted by the author. By providing judges with an opportunity to discuss their decision-making process in such cases, this paper provides a unique occasion to understand and gain insight into the process by which judges consider this best interest factor. Thus, the study reported here is the first to specifically examine judicial consideration of parental mental health when adjudicating custody. These interviews reveal that for judges, parental mental illness is not an a priori reason to deny custody. Judges make custody decisions based on information from the observations and recommendations of a Guardian ad litem, custody evaluations, and personal observations of the judge, framed by “common sense.” Judges, however, tend to overestimate their understanding of the psychological factors relevant to post-divorce adjustment. At the same time, they do not discharge effectively their gatekeeping role when they consider, without question, the evidence, opinions, and conclusions offered by evaluators. To address these problems, it is recommended that judges overseeing child custody proceedings be required to receive more effective training concerning the relevancy and significance of parental mental health, understanding and applying social science and behavioral research, and evaluating expert recommendations. In addition, the law should afford such judges more latitude to consider remissions of a contesting parent's psychiatric symptoms. Lastly, both the law and the judges who enforce it should presumptively afford the mentally ill parent an opportunity for rehabilitation before implementing a permanent custody order.