Mental Illness and Divorce in California

The case scenario described below isn’t a rare case, unfortunately it does happen in a marriage:

My wife who was hospitalized and treated for schizophrenia before the conception of our child is now falsely accusing me of physically abusing our merely 2 years old daughter.  Her accusation has put me under a TRO and given me zero custody for a few months. I have had 50% since the Legal Separation was filed. I am terribly afraid of what can happen to my child. In the meantime, she has gotten into a couple of car accidents and traffic violation tickets since our separation.  She is mentally ill and doesn’t know what she is doing.  She even forgot our daughter in the car while going into the store on multiple occasions.  I’m highly concerned about our child’s safety.  I’m desperate in need of help to get a full custody of my daughter.  What’s the mental health’s impact on custody?

Mental Health’s Impact on Custody

California judges determine child custody in accordance with each child’s best interests. A child’s safety is the court’s utmost concern in custody decisions. If parents have mental health conditions that threaten a child’s safety and wellbeing, the court must consider those mental illnesses when deciding custody. Many parents are able to manage their mental illnesses without it affecting their parenting abilities. Other parents suffer from mental illnesses that make them prone to violence or child neglect. If a mentally ill parent can’t parent appropriately, the court is likely to grant custody to the other parent, or a third party.

Typically, when a child is removed from a parent’s home due to issues related to the parent’s mental illness, the State Department of Social Services will provide family reunification services. The Department won’t provide those services in cases where the parent is too mentally ill to benefit or if the parent is confined to an institution for treatment.

In some cases, a judge may declare a parent developmentally disabled or mentally ill. If the Director of State Hospitals or Director of Developmental Services, or similar person, certifies that the parent is incapable of supporting or controlling a child properly, the state can petition the court to terminate the parent’s parental rights. Two mental health experts must testify that they expect the parent’s disability to continue indefinitely before a judge will terminate parental rights.

Alcohol and drug abuse also affect custody decisions. When one parent abuses alcohol or drugs, a court may be more likely to grant child custody to the other parent, especially if the use of alcohol or drugs interferes with the parent’s ability to raise the child appropriately.  A parent’s regular but moderate use of alcohol won’t affect the judge’s custody determination unless there are ill effects for the child.

If a parent abuses alcohol or drugs to the point that it significantly threatens a child’s safety, a court can terminate that parent’s parental rights. For example, if a child was seriously injured due to a parent driving while intoxicated, a judge can take away that parent’s custodial rights permanently. Also, if a parent suffers from a mental disability due to chronic drug use, which makes the parent unfit to care for a child, the court may terminate parental rights.


If you have additional questions regarding mental health and divorce, please contact Attorney Joanne Zhou at The Zhou Law Group in San Jose.

CategoryDivorce, English