Parents with Mental illnesses in child custody and care matters in South Africa

Biological parents are the ones who have parental responsibilities and rights over their children. Not grandparents, aunts, uncles and so on. Parental responsibilities and rights refer to caring, maintaining and acting as guardian for the child, to mention a few. Mothers automatically have parental responsibilities and rights of care, contact and guardianship, and fathers may either have it or acquire it. This depends on the facts of the case. The obligation to maintain your child however always applies.

Various factors are looked at when deciding what is best for a child

Having said the above, how parents exercise their parental responsibilities and rights would differ from case to case, especially if the parents are not living together. In such a case, various factors and circumstances will be looked at in determining what is best for the child. As would be seen later, in the case of a dispute in relation to how separated and divorced parents should exercise care and contact, expert advice needs to be considered. What this article deals with is how to resolve the issue of parental responsibilities and rights of care and contact when it comes to a parent having a mental illness or disease.

The child’s best interests in all matters concerning a child

We all want what is best for our children. That includes for them being cared for in the best possible way, either by you as a parent, or the other parent if that is best. Having parents who are mentally sound as caregivers are, therefore, an important aspect when it comes to raising a child. Logical and rational caring would take place under the circumstances. Parents would, therefore, communicate in a sensible way with the goal of caring for the child in the best possible way.

Mental illness in a parenting situation

If a couple lives together, and one of them has a mental illness, the other parent would be in a good position to care for the children and the other ill parent. However, problems arise when the parents are separated or no longer living together. The question is what happens to the child if one of the parents are mentally ill or have a mental disease or disorder? It must be stated that not all mental illnesses and diseases warrant consideration when it comes to the issue of care and contact in relation to minor children. If the mental illness or disease is adequately treated through medication and therapy, then it may not be a factor when it comes to parent’s parental responsibilities and rights of care and contact.

Types of mental illnesses and disorders

There are various types of mental illness and diseases. Some of the main groups of mental disorders are:
  • mood disorders (such as depression or bipolar disorder)
  • anxiety disorders
  • personality disorders
  • psychotic disorders (such as schizophrenia)
  • eating disorders
  • trauma-related disorders (such as post-traumatic stress disorder)
  • substance abuse disorders
Examples of signs and symptoms include:
  • Feeling sad or down
  • Confused thinking or reduced ability to concentrate
  • Excessive fears or worries, or extreme feelings of guilt
  • Extreme mood changes of highs and lows
  • Withdrawal from friends and activities
  • Significant tiredness, low energy or problems sleeping
  • Detachment from reality (delusions), paranoia or hallucinations
  • Inability to cope with daily problems or stress
  • Trouble understanding and relating to situations and to people
  • Problems with alcohol or drug use
  • Major changes in eating habits
  • Sex drive changes
  • Excessive anger, hostility or violence
  • Suicidal thinking
  If any of the above-mentioned mental disorders and symptoms thereof would detrimentally affect a parent’s capability to care for a child; then it needs to be considered in a child custody matter. It could, therefore, happen that one parent who had custody over a child, loses it, due to developing or acquiring a mental illness.

How mental illness and diseases may manifest itself in child care and parenting situation

It may be that people with mental illnesses live normal lives as single individuals without any children. They would go to work, partake in sport, and socialize as any other person would. However, when children come into the picture, their mental illness could cause the following to occur:
  • The minor children are not cared for due to one parent having an obsessive-compulsive disorder of always washing his or her hands. They are therefore not fed on time, bathed nor care for properly;
  • A parent is violent and abusive towards the children. He may get angry very fast and act violently;
  • The parent is on strong medication which causes the parent to want to sleep all the time. The minor children are therefore not cared for at all and left to their own devices;
  • The parent lost all form of rationality and makes illogical decisions when it comes to the minor children, placing them in danger. For example, the parent may decide to take the minor children to walk with him or her to the shop late at night when it is dangerous to do so; and
  • The parent may suffer from hallucinations and live in a fantasy world. He or she may be guided on how to parent the minor children from “spirits” who visits and communicates with her.

Diagnoses of mental illness in a parent

It often happens that before a couple has a child, there are no apparent signs of mental illness. It may even happen that the parents of one of the parties knows of some underlying mental illness, but does not want to disclose it to the new person in their child’s life. In other cases, it is well known to all that there is a diagnosis of mental illness which is under control through medication, therapy and so on. And then there is the case where the person with the apparent mental illness does not want to seek any help or is in denial.

What happens after the child is born where one parent has a mental illness?

We are not medical doctors, psychologists, nor psychiatrists. However, in our experience, we noticed, in many of the cases we dealt with, that once a couple has a child, the mother’s medical illness surfaces, or becomes worse. The same may apply to the father. This observation could be because those types of matters make it to our office and should therefore not be a general assumption. However, be that as it may, if one parent has a medical illness that could affect her parenting skills, that needs to be looked at. This is so, even though it is not the parent’s fault that he or she has a mental illness. Now the best-case scenario would be for both parents to remain together if one has a mental disorder when there is a child involved. In that way, the child would be raised with both parents in his or her life and they can work as a team. Depending on the symptoms of the medical disorder, the family can live a balanced and fruitful life.

What happens to the child if the parents separate or divorces?

This is where the issues arise. Should the parents’ divorce or separate, the parties would have to decide who is best suited to care for the minor child or children. If the parent with the mental disorder was the primary caregiver of the minor child since birth, it would be hard to consider a change in primary caregiving. The parent with the mental illness may feel that it would be best that he or she care for the child, despite his or her mental condition. This is where things become very complicated and challenging. On the one hand, you have a parent who always cared for the child, but now has a mental illness, and want to retain primary care. On the other hand, you have a parent who was never the primary caregiver but now wants primary care due to the other parent’s mental condition.

Factors to be considered by the court and experts

Various factors come into play. For example, the age of the children, in whose home they will be living in, and also the mental condition itself. For example, if the child is 16 years old, and the mother has a serious mental illness, for the past 10 years, it would make little sense to change the primary residence of the minor child on that factor alone. By now the child would have learned to care for himself with the assistance the mother provided under the circumstances. On the other hand, if the child is 6 years old, and the mother cannot even take care of herself, then under those circumstances, it may be a good idea if the father primarily cares for the child after separation.

How does one resolve the issue of primary care if one of the parents have a mental condition?

Seeing that the condition is a medical one, mental health care experts need to get on board. An assessment would have to be made as to whether or not the child can be cared for by the relevant parent notwithstanding his or her mental condition. If there is no documentary proof, and such is required for court; the problem that one may encounter is that of doctor-patient confidentiality. This may not always be the case. But especially so if the parents were not married or living together. Usually, medical aid statements would give a timeline of the condition and its treatment. This would apply if the parent with the condition is on the other parent’s medical aid. If the medical practitioner is willing to give a report on the patient’s medical condition, and the inability to care for the minor child; things should be easier to resolve. However, if no such report or diagnosis is forthcoming, then things would be a bit more challenging. Either way, even if you have the report confirming the medical condition, and the issue is not resolved, then the court needs to be approached.

Approaching the court in a child custody matter where one parent has a mental illness

Not all cases of mental illness warrant a child being removed from the care of the primary caregiver. Each case is different and it depends on the facts of each one. However, should the mother had primary care, and she refuses to have the minor child reside with the father due to her mental condition, the court, unfortunately, have to be approached. If the father, in this case, has proof that the mother is mentally unsound and unable to care for the minor child, then the court would have to consider such evidence. This could be a report from the treating doctor or some medical records. The court may however not be in a position to decide how contact and care arrangements should be exercised. For this, the court may want the Office of the Family Advocate or a private social worker or psychologist to conduct an investigation and provide a report in the matter. Once the court has the expert report and heard from both parents concerned, would the court be in a favourable position to rule on what is best for the minor child? It does not mean that because the mother has a mental illness that she should not remain the primary caregiver. As outlined above, various factors would need to be considered. Especially the impact the mental illness would have on her caring ability towards the minor child. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws      
Posted on by Telelaw

Parents with Mental illnesses in child custody and care matters in South Africa

Biological parents are the ones who have parental responsibilities and rights over their children. Not grandparents, aunts, uncles and so on. Parental responsibilities and rights refer to caring, maintaining and acting as guardian for the child, to mention a few. Mothers automatically have parental responsibilities and rights of care, contact and guardianship, and fathers may either have it or acquire it. This depends on the facts of the case. The obligation to maintain your child however always applies.

Various factors are looked at when deciding what is best for a child

Having said the above, how parents exercise their parental responsibilities and rights would differ from case to case, especially if the parents are not living together. In such a case, various factors and circumstances will be looked at in determining what is best for the child. As would be seen later, in the case of a dispute in relation to how separated and divorced parents should exercise care and contact, expert advice needs to be considered. What this article deals with is how to resolve the issue of parental responsibilities and rights of care and contact when it comes to a parent having a mental illness or disease.

The child’s best interests in all matters concerning a child

We all want what is best for our children. That includes for them being cared for in the best possible way, either by you as a parent, or the other parent if that is best. Having parents who are mentally sound as caregivers are, therefore, an important aspect when it comes to raising a child. Logical and rational caring would take place under the circumstances. Parents would, therefore, communicate in a sensible way with the goal of caring for the child in the best possible way.

Mental illness in a parenting situation

If a couple lives together, and one of them has a mental illness, the other parent would be in a good position to care for the children and the other ill parent. However, problems arise when the parents are separated or no longer living together. The question is what happens to the child if one of the parents are mentally ill or have a mental disease or disorder? It must be stated that not all mental illnesses and diseases warrant consideration when it comes to the issue of care and contact in relation to minor children. If the mental illness or disease is adequately treated through medication and therapy, then it may not be a factor when it comes to parent’s parental responsibilities and rights of care and contact.

Types of mental illnesses and disorders

There are various types of mental illness and diseases.

Some of the main groups of mental disorders are:

  • mood disorders (such as depression or bipolar disorder)
  • anxiety disorders
  • personality disorders
  • psychotic disorders (such as schizophrenia)
  • eating disorders
  • trauma-related disorders (such as post-traumatic stress disorder)
  • substance abuse disorders

Examples of signs and symptoms include:

  • Feeling sad or down
  • Confused thinking or reduced ability to concentrate
  • Excessive fears or worries, or extreme feelings of guilt
  • Extreme mood changes of highs and lows
  • Withdrawal from friends and activities
  • Significant tiredness, low energy or problems sleeping
  • Detachment from reality (delusions), paranoia or hallucinations
  • Inability to cope with daily problems or stress
  • Trouble understanding and relating to situations and to people
  • Problems with alcohol or drug use
  • Major changes in eating habits
  • Sex drive changes
  • Excessive anger, hostility or violence
  • Suicidal thinking

 

If any of the above-mentioned mental disorders and symptoms thereof would detrimentally affect a parent’s capability to care for a child; then it needs to be considered in a child custody matter. It could, therefore, happen that one parent who had custody over a child, loses it, due to developing or acquiring a mental illness.

How mental illness and diseases may manifest itself in child care and parenting situation

It may be that people with mental illnesses live normal lives as single individuals without any children. They would go to work, partake in sport, and socialize as any other person would. However, when children come into the picture, their mental illness could cause the following to occur:

  • The minor children are not cared for due to one parent having an obsessive-compulsive disorder of always washing his or her hands. They are therefore not fed on time, bathed nor care for properly;
  • A parent is violent and abusive towards the children. He may get angry very fast and act violently;
  • The parent is on strong medication which causes the parent to want to sleep all the time. The minor children are therefore not cared for at all and left to their own devices;
  • The parent lost all form of rationality and makes illogical decisions when it comes to the minor children, placing them in danger. For example, the parent may decide to take the minor children to walk with him or her to the shop late at night when it is dangerous to do so; and
  • The parent may suffer from hallucinations and live in a fantasy world. He or she may be guided on how to parent the minor children from “spirits” who visits and communicates with her.

Diagnoses of mental illness in a parent

It often happens that before a couple has a child, there are no apparent signs of mental illness. It may even happen that the parents of one of the parties knows of some underlying mental illness, but does not want to disclose it to the new person in their child’s life. In other cases, it is well known to all that there is a diagnosis of mental illness which is under control through medication, therapy and so on. And then there is the case where the person with the apparent mental illness does not want to seek any help or is in denial.

What happens after the child is born where one parent has a mental illness?

We are not medical doctors, psychologists, nor psychiatrists. However, in our experience, we noticed, in many of the cases we dealt with, that once a couple has a child, the mother’s medical illness surfaces, or becomes worse. The same may apply to the father. This observation could be because those types of matters make it to our office and should therefore not be a general assumption. However, be that as it may, if one parent has a medical illness that could affect her parenting skills, that needs to be looked at. This is so, even though it is not the parent’s fault that he or she has a mental illness.

Now the best-case scenario would be for both parents to remain together if one has a mental disorder when there is a child involved. In that way, the child would be raised with both parents in his or her life and they can work as a team. Depending on the symptoms of the medical disorder, the family can live a balanced and fruitful life.

What happens to the child if the parents separate or divorces?

This is where the issues arise. Should the parents’ divorce or separate, the parties would have to decide who is best suited to care for the minor child or children. If the parent with the mental disorder was the primary caregiver of the minor child since birth, it would be hard to consider a change in primary caregiving. The parent with the mental illness may feel that it would be best that he or she care for the child, despite his or her mental condition. This is where things become very complicated and challenging. On the one hand, you have a parent who always cared for the child, but now has a mental illness, and want to retain primary care. On the other hand, you have a parent who was never the primary caregiver but now wants primary care due to the other parent’s mental condition.

Factors to be considered by the court and experts

Various factors come into play. For example, the age of the children, in whose home they will be living in, and also the mental condition itself. For example, if the child is 16 years old, and the mother has a serious mental illness, for the past 10 years, it would make little sense to change the primary residence of the minor child on that factor alone. By now the child would have learned to care for himself with the assistance the mother provided under the circumstances. On the other hand, if the child is 6 years old, and the mother cannot even take care of herself, then under those circumstances, it may be a good idea if the father primarily cares for the child after separation.

How does one resolve the issue of primary care if one of the parents have a mental condition?

Seeing that the condition is a medical one, mental health care experts need to get on board. An assessment would have to be made as to whether or not the child can be cared for by the relevant parent notwithstanding his or her mental condition. If there is no documentary proof, and such is required for court; the problem that one may encounter is that of doctor-patient confidentiality. This may not always be the case. But especially so if the parents were not married or living together. Usually, medical aid statements would give a timeline of the condition and its treatment. This would apply if the parent with the condition is on the other parent’s medical aid.

If the medical practitioner is willing to give a report on the patient’s medical condition, and the inability to care for the minor child; things should be easier to resolve. However, if no such report or diagnosis is forthcoming, then things would be a bit more challenging. Either way, even if you have the report confirming the medical condition, and the issue is not resolved, then the court needs to be approached.

Approaching the court in a child custody matter where one parent has a mental illness

Not all cases of mental illness warrant a child being removed from the care of the primary caregiver. Each case is different and it depends on the facts of each one. However, should the mother had primary care, and she refuses to have the minor child reside with the father due to her mental condition, the court, unfortunately, have to be approached.

If the father, in this case, has proof that the mother is mentally unsound and unable to care for the minor child, then the court would have to consider such evidence. This could be a report from the treating doctor or some medical records. The court may however not be in a position to decide how contact and care arrangements should be exercised. For this, the court may want the Office of the Family Advocate or a private social worker or psychologist to conduct an investigation and provide a report in the matter.

Once the court has the expert report and heard from both parents concerned, would the court be in a favourable position to rule on what is best for the minor child? It does not mean that because the mother has a mental illness that she should not remain the primary caregiver. As outlined above, various factors would need to be considered. Especially the impact the mental illness would have on her caring ability towards the minor child.

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

 

 

 

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I am in search of a trustworthy attorney or advocate. Please direct me to reputable sources to find one.

There are many reputable sources for legal advice and services. Some options include consulting with an advocate or attorney, reaching out to a legal aid organisation, or searching for legal resources through your various websites. It’s essential to research and choose a reliable source to ensure that you receive accurate and trustworthy legal guidance, advice or representation.

When do I decide that there is a need to consult with a lawyer, attorney, or advocate?

Consider consulting with a lawyer, attorney, or advocate if you are facing a legal issue or have questions you need help with. Some everyday situations where you may want to consult a lawyer include:  1. You have been arrested or charged with a crime;  2. You are facing a civil lawsuit or have been served with legal papers.  3. You are considering filing for divorce or dealing with a child custody issue.  4. You are starting a business or need help with business contracts.  5. You are buying or selling a home or other real estate property.  6. You are facing an employment dispute or have questions about your rights as an employee.  A lawyer can provide guidance and support throughout the legal process, ensure that your rights are protected, and help you achieve the best possible outcome in your case. I think it’s essential to choose a lawyer with experience in law that pertains to your specific issue and who you feel comfortable working with.

Is it better to consult with an attorney or advocate virtually or in person?

Whether it is better to consult with a lawyer virtually or in person depends on your preferences and the nature of your legal issue.  Virtual consultations, such as video or phone consultations, can be a convenient option for individuals who cannot travel to a lawyer’s office or prefer the flexibility of consulting with a lawyer from the comfort of their home. Virtual consultations can also benefit individuals with time constraints or who need to consult with a lawyer quickly. However, in-person consultations may be preferable for individuals who prefer face-to-face interaction and feel more comfortable discussing sensitive legal issues. In-person consultations can also allow for a more thorough and detailed discussion of your legal issue and the opportunity to review and sign legal documents on the spot. Ultimately, the decision to consult with a lawyer, attorney or advocate virtually or in person is a personal one and depends on your individual needs and preferences. Many lawyers offer virtual and in-person consultations, so it’s important to discuss your options with your lawyer and choose the best option.

What is free legal advice by an attorney or advocate?

Free legal advice refers to providing legal guidance or information without charge or cost to the recipient. This may be provided by legal aid organisations, pro bono attorneys or advocates, or other resources that offer free legal services. Free legal advice can be helpful for individuals who are unable to afford the cost of hiring an attorney or advocate. Still, ensuring that the advice received is accurate and reliable is essential. Free legal advice may only sometimes be able to address complex legal issues or provide ongoing legal representation fully.

Are all advocates and attorneys the same?

No, not all lawyers are the same. While the High Court has admitted all advocates and attorneys, they may specialise in different areas of law and have varying levels of experience and expertise. Some lawyers may focus on criminal law, while others specialise in family law, intellectual property law, or other areas. Additionally, lawyers may work in private practice, government agencies, or non-profit organisations, impacting their practice and areas of expertise. I think choosing a lawyer with experience in law is essential.

Is there a guarantee that I will win my court case with a lawyer?

No, there is no guarantee that you will win your court case. The outcome of a court case depends on various factors, including the strength of the evidence, the arguments presented by each side, the judge’s interpretation of the law, and other factors. While a lawyer can provide guidance and help prepare your case, they cannot guarantee a specific outcome. It’s essential to have realistic expectations, be prepared for the possibility of an unfavourable outcome, and plan how to proceed if this occurs.

How often should I consult with my attorney or advocate?

The frequency with which you should consult with your lawyer depends on the nature of your legal issue and the complexity of your case. In some cases, you may only need to consult with your lawyer once or twice throughout the entire legal process, while in other cases, you may need to communicate with them more frequently. It’s essential to set clear expectations with your lawyer regarding communication and ensure you are both on the same page regarding how often you will check in and what type of updates you can expect. Also, please feel free to ask me any questions or concerns during the legal process. In that case, reaching out to your lawyer as soon as possible would be essential to ensure they can address them effectively.

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If you are not happy with the outcome of your court case, several options may be available to you, depending on the circumstances of your case.  Firstly, you may have the option to file an appeal, which is a formal request for a higher court to review the decision made in your case. You would appeal to the High Court if your matter were heard in the Magistrates  Court. An appeal can only be filed if there were errors in the legal process that may have affected the outcome of your case, such as the application of the wrong law, facts, procedural errors and so on. Additionally, suppose that your lawyer provided inadequate representation or made significant errors that may have impacted the outcome of your case. In that case, you may have the option to file a complaint or a malpractice claim against them.  I think consulting with a lawyer is essential to determine the best course of action in your specific case. They can guide your legal options and help you make an informed decision about how to proceed.

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