You can prove that the other parent is mentally unstable by providing to the court one or more of the following:

1. Medical records of the parent that say he/she has a mental illness (you may have had access to these records when you were together)
2. Proof that the parent’s mental issues have impacted and will impact the child’s well-being and growth in future
3. Testimonies of people or social service organizations who have witnessed the other parent’s unusual or violent behavior, which could have been caused by a mental illness
4. A court-ordered psychological evaluation of the parent
5. Police reports that state that the parent was violent, unstable, or indulged in criminal behavior
6. Communication (emails, social media posts, messages, pictures, or videos) that demonstrates the parent’s unstable behavior – so long it is compelling and serious enough
7. A personal journal that contains the details and the dates on which the other parent’s actions adversely impacted the child’s emotional or physical well being
8. Any record of benefits received by the parent on account of a mental illness, for example, any money received from the Social Security Disability Fund
9. The child’s medical records that prove physical or psychological harm
10. The child’s school records that point to his/her unusual behavior or development delays
11. Testimony from an expert, teacher, or counselor that convinces the court of any harm caused to the child by the parent

With that said, in child custody cases, courts take into account documentary evidence, expert testimony, and independent witness testimony, while discounting opinions, hearsay, or accusations.

What Do the Courts Consider after Examining Your Evidence?

The courts decide child custody cases in the “best interests of the child,” which requires the courts to consider both parents’ mental health. Therefore, the courts dig deeper when they come across any evidence of mental instability.

If the evidence presented by you above is not conclusive but alerts the court that there exists sufficient ground to investigate the matter further, the court may order a psychological evaluation of the other parent to check if he/she has an undiagnosed medical condition. Alternatively, if you suspect that the other parent is mentally unsound, you can petition for a court-ordered psychological evaluation.

If the evidence you presented convinces the court that the other parent does have a mental illness and that mental illness may negatively impact the children, even then the court may order a psychological evaluation to determine its severity.

Once the court understands the extent of the other parent’s mental illness, it considers the following factors:

• Did the mental illness cause violent, masochistic, sadistic, abusive, or unstable behavior on a consistent or frequent basis?
• Has the illness made the parent neglect the child’s needs?
• Does the illness prevent the parent from functioning independently?
• Does the illness prevent the parent from creating a safe and stable environment for the child?
• Does the child realize that the parent has a mental illness?
• Has the child witnessed the parent indulge in any activity that was probably caused by the illness, and how many times has he/she witnessed such violent, unusual, or unstable episodes?
• Can the parent’s mental condition worsen (or not improve) over time?
• Can the parent’s mental illness be cured or controlled by medication?
• Is the parent open to getting help? Or, does he/she refuse to acknowledge the condition?
• Does the parent’s behavior endanger the child? (If yes, it will be much more difficult for that parent to get physical custody).
• Can the parent make decisions for the good of the child? (If not, the parent is unlikely to get legal custody).

The court’s objective is to ensure that the child enjoys a safe, healthy, and stable future. If the court opines that the parent’s mental health issues will seriously affect his/her abilities to provide the required care, then it is not likely to grant custody. Data suggest that the courts are not likely to grant child custody to a parent with a mental illness that adversely affects the child, especially if he/she has a serious mental illness.

Mentally ill parents will usually get some sort of visitation with their children, but that visitation may be supervised, depending on the severity of the mental illness and likelihood of causing harm to the child. The court can also order the parent to visit a mental health professional to ensure that the illness is in control. If the parent’s mental health problems get resolved or improve, the courts can lift the child custody restrictions it had placed earlier, as well as increase visitation and custody.

Evidence that suggests the other parent has a mental illness can be a gray area, even though it may seem overwhelming. It is best to consult with an experienced divorce attorney who can guide you about the type of evidence that will make the maximum impact in the court.