Custody with a parent with a mental illness?

My husband wants 50/50 custody of our two older children, 12 and 15. I would like him to be a part of their lives but do not feel this arrangement is in the best interests of the children because he has mild/moderate bipolar (he is able to function with flare ups/meltdowns that affect everyone emotionally). He has sought medical help but as of yet is not stable. Would the court be amenable to me having sole custody? Could that custody arrangement be modified later once he has shown that he is stable and medication compliant?

Answer:

There are two types of custody in Maryland.  There is legal custody and there is physical custody and it is important to make the distinction, because you  may be confusing the them.

Legal custody has to do with the future of your children and the big picture, i.e. what schools do they attend, who are their doctors, what religion are they raised etc…  Physical custody has to do with who has the children when.  The courts favor parents having joint legal custody and unless the two parents cannot communicate, that is usually what is ordered.

What you are describing though, is “physical custody”.  A 50/50 split, implies your husband want the children 50% of the time (and not just to make 50% of the decisions about their future).  There are many factors that the court must consider in reaching there conclusion.  These factors include:

• Fitness of the parents;
• Character and reputation of the parties;
• Desire of the natural parents and consent agreements if any;
• Potential for maintaining natural family relations;
• Preferences of the children when of a sufficient age and capacity;
• Material opportunity affecting the future of the child;
• Age, health, and sex of the child;
• Suitability of each parents residence;
• How long the child has been  separated from a natural parent who is seeking custody;
• The effect of prior voluntary abandonment or surrender of custody of the child; and
• Best Interest of the child.

Your husband's mental health and well being are certainly part of the equation and should be considered.  A 50/50 split tends to be more difficult on the children even in the best of circumstances.  So the focus should really be on what is in your children's best interest, not what is what the parent want for themselves.  Because lets face it, separate or together, what parent does not want to see their children and share their lives as much as possible.