The short answer is “a lot.” Anecdotal and actual early statistics show an exponential increase in mental health and substance abuse issues that appears to all correspond with the new way of life that started in March 2020 in the United States (and the world)—when Covid was first mainstream news followed by lockdowns. This blog explores five of the key legal ways a divorce court may address the impact of mental breakdown and substance abuse issues on your children as you navigate the divorce process.
First, while there are thousands of cases and statutes in the divorce (and paternity) laws that could be applied to your situation—remember the hallmark legal rule: the best interests standard. The divorce court must make a physical and legal custody determination as it relates to the children in their best interests.1 If your spouse’s mental health or substance abuse is negatively impacting your children, you should consider filing for divorce or a modification action to protect the kids and to minimize the risks to them from their ill parent. This best-interest-standard provides a court with power to help you protect your children.
Second, a court may appoint a parenting coordinator to address the impact on the children by the ill parent in more or less real time. However, you have to ask the court to do so and there must be funds to pay the parenting coordinator, who may be an attorney or mental health professional. Parenting coordinators can address any given behavior or issue and make recommendations to the trial court for changes in its current orders. Parenting coordinators have several limits, such as they cannot recommend a change in custody. Talk with your lawyer about mental health or substance abuse issues of a parent if it is impacting your children’s best interests.
Third, in a divorce or paternity proceeding, the court can have an initial hearing and make provisional orders that may mitigate the impact your spouse’s behaviors are having on the children—and you. Like any parent with mental or substance abuse issues, the court can make various orders that make your spouse's parenting time (or terms of physical custody) contingent on following orders of the court. If not, the court can find him/her in contempt of court. For example, a trial has the inherent and statutory authority to require “. . . a parent to submit to [submit to] drug testing if the court finds . . . [various facts in the evidence].2
Fourth, a trial court can make therapy a part of its parenting time and custody order. Thus, if your spouse does not follow same, the court can find him or her in contempt.3 There are many remedies for contempt, including incarceration.
Fifth, while rare and narrowly governed by statute and case law, a court can suspend a parent’s parenting time and/or terms of custody or require the parenting time to be supervised. There are significant limits on same under Indiana law because a parent has a fundamental right to see and rear his or her children. To order supervised visitation, the Court would have to find “. . . the child’s physical might be endangered or the child’s emotional development significantly impaired. . . .”4
What should be apparent by this time is that a skilled family law attorney has thousands of tools available at his or her disposal to help you address a parent who has physical or mental health issues. Ciyou & Associates attorneys are very experienced with parents who have substance abuse and/or mental health issues. We can help you navigate the legal field to manage the out-of-control parent who has substance abuse issues. We can help you protect your children.
This blog was written by attorneys at Ciyou & Associates, P.C. This blog is not intended to provide legal advice or be relied upon you for your specific legal issue. It is an advertisement.
- Indiana code section 31-17-2-8 (initial custody order in divorce case). There are several other statutes and cases that make clear the trial court’s focus is firstly on the children’s best interests.
- Indiana code section 31-17-2-21.8.
- This would be indirect civil contempt of court for not following the trial court’s order. There are many statutes and cases covering contempt for failing to follow a trial court’s orders.
- Indiana Code 31-17-1-18.