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).
