Tampa Custody Attorney

Can I Lose Custody in Florida Due to Mental Illness?

In any given year, approximately one in five Americans experience mental illness. Importantly, while destigmatizing mental illness has led to less judgment and a greater understanding of mental health issues, there is plenty of room for improvement.

If you have been diagnosed with a mental illness or have visited a therapist, the other parent may attempt to use this against you in a Florida custody determination by claiming you are an unfit parent. Here is what Florida law has to say on the matter.

Florida Law on Parental Fitness

Florida law operates under the presumption that it is in a child’s best interests to maintain frequent contact and a relationship with both parents. This presumption is not ironclad, however. Proof that a parent’s involvement with the child harms that child’s wellbeing can certainly affect a Florida court’s custody determination.

As such, Florida law effectively says that parents must be “fit” to have a relationship with a child. By extension, “unfit” parents can have their parental rights limited or even revoked by the court if their actions harm a child’s wellbeing. Attempting to limit a parent’s rights based on a history of mental health issues, therefore, is essentially an argument that the parent with mental health issues is “unfit”.

Chapter 39 of The 2018 Florida Statutes defines an unfit parent as one who has abused, abandoned or neglected the child. Know that whether an attack on a parent’s mental health history succeeds is contingent on whether the child’s wellbeing is affected in one of these three ways.

In most cases, a mental illness will not prevent a parent from gaining custody and spending time with their child. There can be exceptions, however, if the mental illness affects a father or mother’s ability to parent.

Does the Mental Illness Affect Parenting Ability?

Suppose a parent is diagnosed with post-traumatic stress disorder, a common anxiety disorder for soldiers in combat. Know that such a diagnosis does not definitively prevent you from obtaining parental timesharing (Florida’s term for custody). However, a court will typically want to see that the parent is seeking treatment and getting the help of a mental health professional. Taking proactive steps to stay on top of the illness at every stage is a favorable approach in the eyes of Florida courts.

If the parent can show that the child has not been harmed in any way by the mental illness, then the illness ought to have absolutely no effect on a custody determination. In other words, there is no evidence to undo the presumption that it is in the child’s best interest to have frequent contact and a relationship with the parent.

If, however, there is clear evidence that a parent’s mental illness has resulted in serious harm to the child or poses a present and continuing danger, then it is possible for a parent to have their parental rights terminated in Florida. A termination of this magnitude is extremely unusual because Florida law and family courts are exceptionally reluctant to keep a child from any contact with a parent.

For illnesses that operate between the ends of the aforementioned extremes, the court will consider whether a parent’s mental illness has affected the child’s social life, school performance, anxiety and similar issues. If the court does have limited to moderate concerns about the illness and its effect on a child, possible steps the court might take include:

  • Prohibiting overnight visitation
  • Ordering that visitation must be supervised
  • Mandating the parent to seek treatment with a mental health professional

Talk to a Tampa Child Custody Lawyer

In summary, the mere fact a parent has a history of mental illness does not mean custody rights will be lost. However, it is also true that a former spouse or partner can try to use a mental illness against you in custody proceedings.

If you have a history of mental health issues that a former partner is using to limit or terminate your parental rights, discuss your legal concerns with a Tampa FL custody and timesharing lawyer at The McKinney Law Group. Contact us online for a free consultation today.


The McKinney Law Group


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