Two Unfair Reasons You May Be Denied Custody Of Your Kids

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Two Unfair Reasons You May Be Denied Custody Of Your Kids

30 March 2017
 Categories: Law, Blog

Family law courts are supposed to make decisions based on the facts of a case and what's in the best interests of the child. Unfortunately, bias does creep in, resulting in unfair decisions against the affected parents. Here are two things that shouldn't affect your child custody case but can and what you can do about them.

Mental Illness

According to the National Alliance of Mental Illness, at any given time, 1 in 5 Americans suffer from mental illness. Even more concerning is 1 in 25 people have issues that significantly interfere with major life activities. If you fall into the latter category, your ex could argue your condition makes you unfit to parent. Since ensuring children are placed in a stable environment is the court's top concern, the judge may agree. Depending on the severity of your condition, you may lose custody of your kids and even have your visitation rights restricted.

Even if your psychological issues don't interfer with your ability to parent, the stigma attached to mental health problems can make a judge hesitant to give you custody of the kids, especially if you have a condition that affect your perception of reality (e.g. schizophrenia). To keep this from happening, it's critical you show the court you have your condition under control. For instance, provide proof you're taking your medications as required or participating in a treatment program. If you have had problems in the past, showing you have improved can also help alleviate the judge's concern.

Sexual Orientation

Although same-sex marriage is legal, gay and lesbian couples still face challenges in the courtroom when it comes to child custody because of the unique circumstances involved in the birth of their kids. In general, only one (and in some cases neither) parent is biologically related to the child in a same-sex coupling. Unfortunately, not all states recognize the second non-biological parent as having rights to the child if that parent did not officially adopt him or her, which typically results in the second parent being completely ignored when it comes to custody and visitation issues.

Even in states where the law is explicit or ambiguous, a biased judge may use other rules to deny non-biological parents their rights. In New Jersey, for instance, insemination involving donor sperm must be done by a doctor; otherwise, the donor's parental rights remain intact regardless of any agreement the couple may have with the person. This can lead to the non-biological parent being denied rights because the donor's rights are still technically in effect.

Overcoming this issue is very challenging. Sometimes you can establish your parental rights by showing you and your spouse intended to have children together (e.g. contracts with donors, etc) or that you have a parent-child relationship with your kids (e.g. you provide financial and emotional support). However, each state is different, so it's critical you hire an attorney who is familiar with the laws and judges in your area to help you with this issue.

For more information or assistance, contact a family law attorney.