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Mental Health and Custody or Visitation Cases in Virginia

Mental HealthDo you have a current mental health diagnosis? What about an ongoing custody or visitation case in Virginia? Are you worried about the impact that your diagnosis could have on your case? You are not alone.

The pandemic has affected people in many ways. Various stay-at-home orders and travel restrictions. The inability to share precious moments with loved ones, like the birth of a new child, college graduations and wedding ceremonies. Most people can agree that COVID-19 has also impacted their mental health. People without a mental health diagnosis prior to the pandemic are now being riddled with stress, anxiety and depression. Those who had mental health diagnoses may be seeing their conditions worsen. How will a mental health diagnosis impact a custody or visitation case in Virginia?

Under in Virginia Code § 20-124.3, judges are required to consider the mental health of each parent. The court is tasked with making a custody determination in the best interests of the child, and therefore, a parent’s mental health is relevant. When a parent has a mental health diagnosis for depression or anxiety, for example, what is a judge truly considering? Perhaps the parent has a military service-related mental health diagnosis or is a battered spouse. Does a mental health diagnosis mean that a parent is unfit to have custody of or visitation with their child? Absolutely not.

For starters, a parent who has a mental health diagnosis should own that fact with the court. A judge will be able to weigh a parent’s credibility when they testify truthfully. Judges want to know if your mental health diagnosis affects your ability to adequately parent your child. Will the child be safe in your care? Are there any conditions that must be implemented to protect the child and foster a healthy parent-child relationship? Were there any instances in which the child was negatively impacted? You will have the opportunity to address these concerns head-on.

The judge will also be expecting testimony regarding whether your mental health diagnosis is controlled in any way. What steps are you taking to be responsible? Are you taking medications as prescribed? Are you seeing your medical provider as recommended? Have you had any recent admittances to a mental health facility? Have you had any recent mental health events?

You may also have the opportunity to hire a mental health provider as an expert witness to conduct an evaluation and testify, in order to rebut and demystify evidence presented by the opposing party. The court also has the option, at the request of either party, to consider ordering a neutral psychiatric evaluation for the court’s consideration at trial.

Many parents in contentious custody cases weaponize the other parent’s mental health diagnosis in an attempt to gain an advantage in court. However, having such a diagnosis does not automatically preclude a parent from having custody of or visitation with their child. Having an experienced attorney on your side, to present your case strategically and persuasively, can be essential when your mental health has been or could be placed at issue.

If you have a mental health diagnosis and are concerned about the impact it may have on your custody case, be sure to consult with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.