Introduction: family matters

Throughout the world, societal mores place paramount value in the institution of the family and confer significant authority on the adult parents who are usually at its head. As a result, parents generally are supposed to have unfettered rights to raise children in a manner consistent with their beliefs and personal preferences. Social systems such as the law, then, should enshrine that value we bestow upon parenting by ensuring parents’ right to raise their child without undue interference from the state or other parties, actual harm to a child being absent. In practice, though, most legal systems routinely deny such protection to a significant subset of parents: those who experience mental illness. And while nothing should necessarily prevent people who have experienced mental illness from caring for their children, these particular parents are frequently singled out for scrutiny rather than the protection promised to most citizens by their state. They are, often unfairly, presumed incapable of parenting. Yet data suggest that over half of all adults with mental illness do become parents (Nicholson et al., 2001).

This chapter used the United States of America (USA) as an example of a system that has failed to progress as far as possible in recognizing the importance of allowing all people to enjoy their right to parent their children. But it also aims to show that something can be done to remedy the grave shortcomings of the state, and that reparative action need not be bound by national borders. The Clubhouse Family Legal Support Project has worked to cultivate a refuge for parents with mental illness in this otherwise barren patch of the American social and legal services landscape. The project takes a holistic approach, combining the support services of a clubhouse¹ with the advocacy of an attorney who specializes in the intersection of mental health and family law. The goal is to help clients overcome the significant legal obstacles they encounter in raising children, particularly in the face of family breakup or state-initiated intervention.

In what follows, we describe in some detail the mechanisms by which parents with mental illness in the USA are made vulnerable vis-à-vis state and national legal practice. We employ a case study to ground our observations, and then look at the clubhouse model and how it addresses many of the problems identified here. First, though, we sketch a general picture of disability and adult mental illness in the USA, both to elucidate the conditions that compel the work done by the project and to allow advocates and practitioners outside the USA to assess the applicability of the project’s approach to their own professional, legal, and cultural milieu.

Disability, adult mental illness, and their impact on families

The scope of the problem addressed here is not easy to define. There is a dearth of reliable data on the number of parents that experience mental illness (although at least one study suggests that over half of adults with mental illness may become parents), and we cannot say with confidence how many of such parents have faced legal intervention, much less how many have lost or retained custody of their children (Nicholson et al., 2004). In order to approximate the phenomenon, we looked at disability data regarding the pool of parents whose mental illness makes them eligible for social welfare benefits based on disability.

According to recent data, approximately 15% of all families in the USA include a parent with a physical or mental disability (Callow, 2009).² These parents are three times more likely than nondisabled adults to live in poverty and to be unable to access needed healthcare; they are also twice as likely to be unemployed, drop out of high school, and live far from vital transportation (Callow, 2009). Evidence (e.g., National Council on Disability, 2012) suggests that parents with a disability also lose access to their children at alarming rates relative to nondisabled parents, either after a divorce or due to state intervention.

Whitaker (2010) has demonstrated that the most prevalent and fastest growing cause of disability in the USA is adult mental illness. Over 4 million Americans are disabled by mental illness; as a percentage of the country’s total population, this rate is more than double what it was 35 years ago, and over six times what it was 55 years ago (Whitaker, 2010). And, according to recent figures (National Council on Disability, 2012), the outcomes documented for people disabled by mental illness are in many cases even worse than those of the general population of disabled adults. Most saliently in the USA, parents experiencing mental illness are overwhelmingly likely to lose their basic right to raise a child. For parents with psychiatric and intellectual disabilities, state removal rates have been shown (National Council on Disability, 2012) to be as high as 70–80%, while for other disabled parents rates generally reach to around 60%.

The stress inevitably involved in family breakup can generate observable psychiatric symptoms for even the healthiest individuals, and mental decompensation is a very real cause for concern among parents with histories of mental illness (Temple University Collaborative on Community Inclusion of Individuals with Psychiatric Disabilities (TUC), 2009). Children removed from their homes suffer high rates of trauma and tend to be dogged by hardship even as adults, particularly those who do not remain with a second parent or extended family and, instead, are placed in state-sponsored alternative care arrangements (known as foster care in the USA). Doyle (2007) has shown that state intervention in a family breakup does not guarantee the quality of the care that children will receive when placed in substitute families and other state-mediated living arrangements, and that children so placed tend to have higher rates of delinquency and teen pregnancy, as well as substantially lower lifetime earnings, than their peers. Children removed from families where a parent has a mental illness have also been seen to develop psychiatric conditions of their own owing in part to their removal (TUC, 2009).

Because of these significant concerns, state intervention in child-custody matters should be avoided whenever possible. When courts and state agencies become involved in family life, and especially when they intervene in child custody, they should have to demonstrate a legally compelling reason to do so. There will always be circumstances when some individuals experiencing mental illness are unable to parent their children. But no evidence presently exists to show that there are a higher proportion of unfit parents among persons with mental illness than in the general population. In other words, we have no reason to believe that such a disproportionately high rate (70–80%) of parents who experience or are disabled by mental illness present a more significant risk of harm to their children than parents without such disabilities. Yet there is significant evidence of the high rates of loss of custody and state intervention into these families. One conclusion to be drawn is plain: the American legal system demonstrates significant bias in its treatment of parents with mental illness. This bias traces to problems in the application of ostensibly neutral legal principles that entail outmoded practices or unexamined notions regarding the inherent capacities of persons with mental illness.

Bias: on the books and in the courts

The American legal system creates a challenging dynamic for parents diagnosed with a psychiatric illness, particularly in custody and parenting time³ cases. Based on increasingly antiquated procedural and due-process protections, the current system cannot always best serve a family struggling with the effects of a parent’s mental health issues.

For instance, while the Adoption and Safe Families Act (which governs custody matters nationally) provides that courts must make a reasonable effort to preserve families, it neither ensures the accommodation of a parental disability as a criterion for meeting this standard nor provides parents with a right to sue in court to enforce it. Rather, these considerations are left to the individual states, thirty-six of which, at present, specifically allow for the termination of parental rights largely on the basis of a psychiatric diagnosis. Although rights may not be terminated solely on this basis, studies have shown that the standard does invite courts to presume, without adequate examination, that a psychiatric diagnosis equates with a disabling condition, rather than to investigate how a psychiatric condition specifically does or does not affect parenting ability (Mathis, 2013).

The tendency to allow the existence of a psychiatric diagnosis to take the place of an appropriately rigorous analysis of the history and circumstances of particular cases often prevents judges from coming to reasoned conclusions regarding what are reasonable efforts to reunify a family, or what is in a child’s best interests. As is discussed in greater detail later, it is often the case that, when allegations of a crisis involving one parent’s mental health are brought before a court, minimal consideration is given to the history of the child’s care or what resources could be brought to bear to support and stabilize the family in its current form. Instead, allegations rendered at the outset of the proceedings, even when unfounded, often prompt a narrow analysis of conflicting versions of the events leading to the immediate crisis. The decision emerging from this preliminary hearing, determining child placement during the pendency of what is often a long period of litigation, can set the tone for the entire case and even preordain the final outcome. Thus, when the court considers only the precipitating facts of the incident or crisis that is presented by the opposing side against the disabled parent, the decision to limit that parent’s access to the child often has lasting consequences; once children have been separated from their parents, courts may be reluctant to disrupt the new status quo at the time of the final determination.

Even courts willing to conduct a searching examination may be hamstrung by manifestations of biasing stigma, dramatically affecting the process. Research on the role of professional evaluations of parental competency shows that an overwhelming majority of evaluators are comfortable making a determination to break up a family without ever witnessing parent and child interact (Mathis, 2013). In place of the observable facts of a relationship and an appropriately nuanced view of how a parent’s mental illness comes into play, these evaluators’ determinations rely on generalized and even stereotypical notions of mental illness. Mathis (2013) reports that such notions tend to focus on what parents with psychiatric histories cannot do rather than on their strengths or on how they might be supported in their role as a parent.

The average attorney, meanwhile, is unlikely to have the training necessary to work through these obstacles. In some cases, attorneys retain stereotypical views of mental illness that limit their effectiveness. More commonly, though, the parent’s lawyer is simply ill-prepared to do anything other than try to minimize the court’s focus on the client’s illness, or to tacitly concede that mental illness is a legally damning condition, even in cases where the condition has had little impact on parenting competence. The attorney’s client, vulnerable and all but voiceless, may well lose the motivation and capacity to assist in the pursuit to access their child. Even a fair-minded court, if presented with an evaluation report negatively biased against parents with mental illness, will lack the information necessary to make a comprehensive and just determination of the child’s best interests. The court may therefore deny capable parents access to their children.