HELPING YOURSELF THROUGH FAMILY COURT PROCEEDINGS:
A GUIDE FOR PARENTS WITH PSYCHIATRIC DISABILITIES

Prepared by Darlene Ward, Executive Director, CASANYS
Sponsored through the Parents With Psychiatric Disabilities Project
of the Mental Health Association in New York State, Inc. (MHANYS)
Reprinted September 2001

Contents:
Helping Yourself Through Family Court Proceedings
Definitions of Key Roles and Terms
Confidentiality and Access to Mental Health Records
Private Custody Disputes and Mediation
Stand-By Guardianship

Helping Yourself Through Family Court Proceedings:
A Guide for Parents With Psychiatric Disabilities

The following are suggestions from parents with psychiatric disabilities, service providers, and representatives of Family Courts on how you can help yourself and your children during any Family Court proceedings involving custody. They are not intended as legal counsel, but may serve to help you to understand the process of Family Court and what steps you can take to best care for yourself and your children.

GET AN ATTORNEY. You have the right to counsel. If you can afford to do so, you must hire your own attorney. If you cannot afford to hire a private lawyer, you must request the judge appoint counsel for you. You would then need to meet financial eligibility requirements. The attorney appointed for you either will be a local Assistant Public Defender or an individual in private practice who accepts such cases. It is very important that you feel that your attorney understands your situation, mental illness, and your child's needs. Your attorney, however, is not a therapist and his or her time needs to be focused on your legal concerns. (The MHANYS Parents with Psychiatric Disabilities Project cannot recommend individual attorneys or therapists, and cannot represent individuals in legal proceedings. Contact your local Family Court for direction.)

FIND AN ADVOCATE, preferably a peer who has experience in the court process. Someone who has been through the process and understands psychiatric disabilities will be a big help and comfort at this time. Your local MHA and consumer-run groups can help you. They can also direct you to area self-help groups which can be a tremendous source of strength.

OBTAIN INFORMATION. You need as much information as you can get about the legal process, and the child protective process if that is involved. Ask questions and get answers before taking any action. It may be helpful to write questions down before talking with officials and advocates, and keep written records of their answers. You have the right to know exactly what will happen, and what decisions could be made during any court proceeding before it begins. You should never sign a legal or other official paper which you do not understand, and without consulting your attorney.

EDUCATE YOUR ATTORNEY AND OTHERS INVOLVED IN YOUR CASE ABOUT MENTAL ILLNESS and your own diagnosis. Materials about mental illnesses are available from your local Mental Health Association, local consumer groups and providers, at your local library, and from the Mental Health Association in New York State's Mental Health Information Center, 1-800-766-6177.

GET EDUCATION ABOUT PARENTING. If there is a local parenting class or support group, see if you can join. Everyone can benefit from more information about parenting, strategies for managing your home and knowledge of the different needs of children at different ages. Taking a class and joining a group also helps to show judges, child protection workers, and providers how serious you are about your role as a parent.

CREATE A CARE PLAN. Even if you have not had symptoms for a while, Family Court judges like to see there is a plan in place in case you are prevented from parenting because of a diagnosed mental illness. This means that you have friends or family who have agreed, in writing if possible, to provide care to your children if you are unable to do so. Make sure you have a number of people in your back-up plan in case one person is not available. It is very important to do this before you need to, in order to provide the most consistent care for your children. Your care plan also should include day care for work or ongoing treatment.

CREATE A SELF-CARE PLAN. How are you taking care of yourself at this time? This is undoubtedly a stressful time for you. It helps to have a formal plan of action. What helps you relax? What emotional supports work best for you? Are there other stresses in your life you can eliminate? A self-care plan shows the judge that you can care for yourself, in order to also care for your family. If you have primary care of young children, build adequate breaks into your schedule; you need respite time for yourself, and your children can benefit from being with other children and other caregivers. Look for rehabilitation programs that include parenting as a goal, and discuss your parenting needs with your counselor, social worker, or physician.

TRY TO MAINTAIN A POSITIVE ATTITUDE. This is much easier said than done, especially if service providers or relatives are saying negative things about you. Set out to prove them wrong.

If things are happening that make you angry or upset, express these feelings to trusted friends or other supportive people. If you direct your anger at service providers, this will only make them more concerned about placing your children in your care, regardless of how appropriate your anger may be under the circumstances. Try to remember that everyone involved, like you, just wants what's best for your children. You may not agree, but calm disagreement and careful planning will get you much farther toward custody. Keep your long-term goal in mind.

Parents have said it is particularly frustrating to be in a court mandated program that doesn't seem to be helpful to you. Try to get what you need while still complying with the treatment. Dropping out of mandated treatment is not an option.

LOOK FOR ALTERNATIVES. Sometimes there are alternatives to traditional custody situations and court proceedings. For example, you can inquire about open adoptions, which will allow you to maintain a relationship with your children, even after they have been placed in a permanent home, if you decide this is the best choice for you. Seeing things in black and white terms can make them more frightening, so seek out more attractive options.

TAKE ONE DAY AT A TIME. Custody proceedings are long processes, and can be very draining. Imagining the worst can keep you from enjoying time with your child today, and can aggravate symptoms. Even if you suffer a major setback, don't give up. While you need to grieve your losses, you don't have to lose hope. Working on your recovery can only help in the future, if there are more opportunities to change a custody situation.

HELP YOUR CHILD UNDERSTAND WHAT IS HAPPENING. When parents are in the middle of custody cases, it can be a confusing time for children. Explain mental illness to them in a way they can understand, and talk to them about what you do - medications, therapy, etc. - to help yourself get better. Suggested literature for children is available from the Mental Health Association in New York State (MHANYS), 1-800-766-6177, and at your local MHA and library.

Children always think the world revolves around them, so if something bad is happening, they think they caused it or should be able to fix it. It is important for children to know you have other adults in your life to help you, and that no matter what is happening, you love them and want what's best for them.

If there is hostility toward you from other caregivers of the child, try to rise above the name calling; it is confusing to children to hear bad things about another parent or caregiver. Get support from concerned peers who know the real you. Remember that children have an uncanny instinct for the truth.

MAINTAIN AS MUCH CONTACT WITH YOUR CHILD AS IS POSSIBLE. Parents sometimes say they feel that seeing their children only a few hours a week is worse than not seeing them at all, but even two hours can make a big difference to your child and for you. It is very important for your children that you make every effort to see them, talk with them, or write them as often as you can, particularly when you are not the primary caregiver.

If you are barred from any contact, keep a diary or unsent letters; there may be a time when these come to mean a great deal to your child, and they help you stay focused on family reunification. If reunification is not possible, or not your goal, it is important to get support for feelings of loss you may have. These are not always given adequate attention by service providers.

TAKE THE LONG VIEW. Your children will be adults for far longer than they will be children, and even if you have to live with a custody situation now that is not of your - or their - choosing, you may have many years to build a relationship with your children once they reach adulthood.

BELIEVE IN YOURSELF. No one can make you feel badly about yourself without your cooperation, no matter how hard they try. Surround yourself with people who believe that recovery from mental illness is not only possible, but probable. To have survived so far, you have many, many strengths that you can draw upon. Remember these in times of stress, and share your strengths with your children.

ADVOCATE FOR OTHER PARENTS WITH PSYCHIATRIC DISABILITIES. Working together can dramatically change public attitudes toward people with diagnosed mental illnesses, and can help you to feel empowered during a difficult time. Participating in the self-help movement, locally and nationally is an excellent way to begin. Contact your local Mental Health Association to see what the needs are in your community.

Definitions of the Key Roles and Terms you may
hear during Family Court proceedings:

Judge:
The judge is the ultimate decision-maker. He or she has control of the proceedings and will direct attorneys and witnesses on how to proceed.

Attorney:
You have the right to an attorney, and the steps on the right describe how to obtain one. The Department of Social Services (DSS) will have an attorney representing the local county DSS as well as any DSS caseworkers. In a Family Court case involving DSS, DSS generally has petitioned the court to take some action with respect to a child.

Law Guardian:
Your child may be represented in court by an attorney called a law guardian. The judge does not always appoint a law guardian and you may want to consider requesting the judge to do so. The law guardian should represent your child's wishes, if he or she is old enough to express them. The law guardian may also advocate for what he or she feels are the best interests of the child.

"Best Interest":
The best interest of the child is the legal standard by which a judge decides all custody cases. Where the best interest of the child and the parent's interest are not the same, the child's welfare always will be the priority.

Court-Appointed Special Advocates (CASA):
CASA individuals, generally volunteers, may be appointed by the judge to advocate for the child. They are not legal representatives, but may be able to learn important details about the child and family, details which may help the judge decide the case. For more information about the CASA program, contact CASA: Advocates for Children of NYS at 1-877-80-VOICE or www.casanys.org.

Expert Witnesses:
Mental Health professionals often are appointed by the judge to give an opinion, after examining the parent and the child. In some cases, such as where DSS is petitioning to terminate parental rights on the ground of mental illness, the judge is required to appoint a psychiatrist or a psychologist to examine the parent. In other cases, the judge may choose to appoint the local county probation department or mental health clinic to evaluate the parent and the child. These professionals function as neutral fact-finders for the court.

Your attorney also may seek to have your treating psychiatrist, psychologist or social worker testify regarding the issues in the case, including your ability to parent.

Adoption and Safe Families Act (ASFA):
ASFA is a federal and state mandate to help prevent delays in foster care proceedings. At a 15-month point in a case, if the child is not being scheduled for a return home, the county is required to file for Termination of Parental Rights (TPR). The county, however, will continue to work with you toward reunification until the judge has ruled on the TPR.

Confidentiality and Access to Mental Health Records

The mental health professionals who treat you, whether they are psychiatrists, psychologists, social workers or other therapists, are required to hold everything you tell them in confidence. That is, they may not speak to anyone about you or repeat what you have told them without your permission. However, when a child's custody or welfare are at issue, there are exceptions to this general rule under the law. First, all mental health professionals - as well as school and some other agency personnel - are required to report to the Department of Social Services if they believe you are abusing or neglecting your child. You need to be completely honest with your therapist if you feel you are in danger of abusing or neglecting your children, so that your family can get help immediately.

Second, the judge can order the written records of your mental health treatment to be provided to the court as well as the other parties in a case. These records are not currently protected by law.

Finally, nothing you tell to a court-appointed mental health professional is confidential. His or her role is to inform the judge regarding your ability to parent. This professional will be looking for evidence that you have the capability and desire to raise your children in a healthy way. While it is natural to communicate to everyone how much you want and need your child, these comments are sometimes viewed as your focusing on your needs instead of your child's. What judges and social workers want to know is that you are committed to meeting your children's needs, and can put their needs first.

Private Custody Disputes and Mediation

A parent's mental illness often becomes an issue in private custody disputes between a mother and father or between a parent and other family members. In such a case, the Department of Social Services is not directly involved in the custody case. The judge may still appoint mental health professionals to examine one or both parents, as well as the children, and report to the court.

An important alternative to consider is attempting to mediate a private custody dispute before court involvement. Mediation is a process in which a trained, impartial individual meets with the parties and, through discussion of each party's point of view and of the alternatives open to them, helps the parties to reach their own agreement regarding custody. The agreement is then written down. If the parties cannot reach agreement through mediation, they can still go through a court custody proceeding. In mediation, as in court cases, however, you may need to provide some education about mental illnesses and recovery.

Stand-By Guardianship

It is possible under New York State law for you to designate someone in advance to care for your children in the event that you become unable to do so because of your mental illness. This must be done in writing in front of two witnesses. In the event of your incapacity, the individual you designate must seek court approval of the stand-by guardianship within sixty days. Or, you may petition a court in advance of becoming incapacitated for the appointment of a stand-by guardian. The stand-by guardian's authority would begin upon your incapacity, which must be likely to occur within two years. Neither of these procedures would divest you of any parental or guardianship rights. Rather, the stand-by guardian's authority would be concurrent with yours. You may revoke the stand-by guardian's authority at any time. (Surrogate's Court Procedure Act, Section 1726).