How Do Matrimonial and Family Courts Address Needs of Children with Mental Illness?


How do matrimonial and family courts address needs of children with mental illness?

The recent school shootings in Newtown, Connecticut has raised questions regarding a host of social issues, including school security, gun control, and resources for mental illness. But a related public policy issue which has not received much attention is that of the ability of the matrimonial and family court system to intervene for children with special needs or mental illness.

The background story that seems to have emerged in the Connecticut tragedy is that of a child evidencing mental illness since early childhood, a subsequent divorce, (a contributing cause of which may well have been the stresses of raising a special needs child), followed by increasing isolation and a downward spiral for the child.

It has long been known that the family stresses associated with mentally ill or special needs children significantly increase the likelihood of divorce or separations with Family Court custody proceedings. In turn, divorce in itself can magnify and compound prior stressors. The matrimonial and family court system accordingly finds itself in control of custodial planning (and therapeutic intervention) for such children at an increasingly critical time for the child. And since the court is generally required by case law to issue only custody orders which are in the “best interests of the child” (both generally and with regard to the specific issues of special needs children), one would expect thoughtful analysis by the Courts at such a critical turning point.

However, the reality is that if the parties proceed with divorce, the normal path is for courts to push for settlement of custody right from the first court appearance, with “best interests of the child” given only lip service, while the real factor considered by the Court is which parent was primarily home raising the child before the court action. With overwhelming case loads, the Court finds itself motivated to determine and continue the status quo and move on to other cases in its overcrowded caseload. Among other things, no analysis is usually made as to whether the parent who has been spending the most time at home with the child is the most equipped to effectively address the needs of a special needs child: that may well be the case, but not necessarily. Moreover, the pre-divorce division of labor between the parties may be very different from the post-divorce situation, where both parties are more likely to be working to maintain the costs of two households; in the new context, a fresh examination of the parties’ respective parenting abilities may sometimes be necessary, particularly with regard to a special needs child.

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