Separations that occur in the family courts are often characterised by high conflict and lengthy proceedings. For parents with a mental illness, the court can offer additional barriers which may lead to less time with their children and mental distress. This study aimed to (a) identify and critique research relating to parental mental illness in the family courts and (b) understand the experiences of parents with a mental illness who engage with the family courts in parenting matters. This scoping review was conducted on five databases (CINAHL, HeinOnline, ProQuest, PsycInfo and Scopus) following PRISMA-ScR guidelines. The search yielded 5392 unique articles, 12 of which met criteria and were included in this review. These articles included qualitative, quantitative and mixed method studies from family courts located in several countries. Through thematic analysis, four themes were constructed, (1) Actual and perceived influence of parental mental illness on outcomes, (2) Family violence and the courts, (3) The impact of the legal process on parents who have a mental illness, and (4) Supports for parents with a mental illness. The results indicate that parents with a mental illness face many obstacles that impact their ability to engage in the court processes and the outcomes of parenting cases. There were, however, many gaps within the current research. Limitations of the current research and directions for future research in parental mental illness in the family courts are offered.
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Divorce, parental separation and post-separation parenting are common life transitions for many families. Yet for some, these transitions are characterised by stigma and distress (Konstam et al., 2016; Strizzi et al., 2021). In particular, many litigated disputes involving children have high levels of conflict and lengthy court processes, which can exacerbate an already difficult time for families (Polak & Saini, 2019). In addition to these difficulties, parental mental illness is a common feature of parenting cases in the family courts (Kaspiew et al., 2015). Parents who have a mental illness face a number of challenges in relation to supporting their family (Reupert & Maybery, 2016) and are more likely to be involved in parenting disputes than other families (Salzer et al., 2020). Yet, stigma and fear of losing care of one’s child may prevent many parents from seeking support for their illness during this time (Dolman et al., 2013). In light of these dynamics, and their potential negative impact on children, it is important to gain a comprehensive understanding of the experiences of parents with a mental illness who engage with the family courts to inform policy and the development of appropriate support systems.
Parental Mental Illness
Parents with a mental illness and their children often report feeling significant levels of stigma and shame in talking about mental illness (Reupert et al., 2021). This can lead parents to avoid seeking support for their mental illness for fear of being judged by peers or services (Dolman et al., 2013). Some parents also report not seeking help for their mental illness, even in times of great distress, for fear of losing their child through either family court or government interventions, such as child protection (Ackerson, 2003; Khalifeh et al., 2009). In many cases, these fears may be appropriately founded, with research from the United States of America (USA) and Australia indicating that parents with a mental illness are more likely to be challenged for, and lose, parenting time with their children, compared to parents who do not experience a mental illness (Kaplan et al., 2019; O’Donnell et al., 2015; Salzer et al., 2020).
A variety of genetic and environmental factors can contribute to an increased risk of behavioural, social and emotional difficulties in children of parents with a mental illness (Reupert & Maybery, 2016). Parents with a mental illness may have difficulty fulfilling parental responsibility due to the symptoms of their illness, such as fatigue, apathy and impaired functioning (Reupert & Maybery, 2016). However, not all children living in these families will report negative outcomes. Factors such as parenting competency, the availability and appropriateness of parenting support, child temperament, access to treatment, severity and chronicity of the parents’ symptomology, and economic and housing stability, all play a part in a person’s ability to care for their child (Reupert et al., 2015). Although many mental illnesses are lifelong conditions, the functioning of the individual and their abilities as a parent are not static, and parenting capacity for those who have a mental illness can increase with appropriate social supports and interventions in place (Reupert et al., 2015; Risley-Curtiss et al., 2004). It is therefore important that a parent’s mental illness not be viewed in isolation, but that all factors contributing to their capacity to provide a safe and nurturing environment be considered.
Mental Illness in the Family Courts
In many countries, the foremost consideration of the family courts in parenting matters is the best interest or welfare of the child. This guiding principle is seen in all State laws in the USA (Child Welfare Information Gateway, 2020), and in many other countries such as in section 60CA of the Australian Family Law Act (1975) (Cth) and the United Kingdom’s Children Act (1989). What the court considers to be in the child’s best interests will depend on the particular child’s circumstances. However, it is not uncommon for legislation to direct judges to consider factors such as the need to protect the child from harm; the child’s physical, emotional and educational needs; and the capacity of each parent to provide for their children’s needs. Evidence of a parent’s mental illness may be relevant to each of these issues and could see the court limit a parent’s time with their child (Raub et al., 2013; Salzer et al., 2020).
There are, however, several other barriers which may further increase the chance of a parent with a mental illness having less time or contact with their child. One such barrier may be the court system itself. An adversarial court system, such as exists in Australia and England, has often been criticised as inappropriate for handling family court matters (Australian Law Reform Commission (2019); Mitcham-Smith & Henry, 2007). The adversarial system encourages parents to build a ‘winning case’ by providing evidence for their own ability to parent, and in some cases, the lack of parental ability of the other parent (Mitcham-Smith & Henry, 2007). Through this lens, the focus for parents may shift away from the best interests of the child, to instead focus on the win/lose outcome of the case. This system has been suggested to expose children to a higher-level conflict and trauma (Australian Law Reform Commission (2019); Mitcham-Smith & Henry, 2007). Moreover, having a mental illness can increase the chances of housing instability, financial stress, family violence and substance abuse (Nishio et al., 2017; Toftdahl et al., 2016; Trevillion et al., 2012), all of which may negatively impact the parent’s ability to participate in the court processes.
Previous studies suggest that parental mental illness may influence law proceedings related to children in a variety of ways (Kaplan et al., 2019; O’Donnell et al., 2015), and that, in turn, litigious court proceedings may exacerbate mental illness symptoms (Australian Law Reform Commission (2019); Mitcham-Smith & Henry, 2007). Parents with mental illness may experience greater levels of poverty, leading to housing and financial instability and difficulty in accessing ongoing legal representation (Kaplan et al., 2019). Discrimination against parents with a disability more generally is also applicable to legal proceedings involving children. Kaplan et al. (2019) suggested that in child protection cases, clinicians and judges may hold biases against parents who have a mental illness. Additionally, a parent’s ability to participate may be reduced by the elevated stress associated with legal proceedings (Mitcham-Smith & Henry, 2007). To better understand the nature of these interactions, a scoping review of the literature was conducted regarding the experiences of parents, who have a mental illness, in the family courts. To facilitate the translation of the extant body of available qualitative and quantitative research to inform practice and policy, a systematic synthesis of the research is required. The aim of this review is to (a) identify and critique research relating to parental mental illness in the family courts and (b) understand the experiences of parents with a mental illness who engage with the family courts in parenting matters.
Method
Design
This scoping review was undertaken using the PRISMA-ScR (Preferred Reporting Items for Systematic reviews and Meta-Analyses extension for Scoping Reviews) protocol and followed the PRISMA-ScR checklist to improve the quality and accountability of the review (Tricco et al., 2018).
Inclusion Criteria
Studies were included in this review if they met the following criteria:
1.
Contains information pertaining to parental mental illness in the context of legal proceedings in the family courts.
2.
Published on or after 2009. Given that family law sees “very regular and radical reform” in response to “dramatic changes in social attitudes”, this timeline was established to capture the latest research in the field (Young, 2016, p.1).
3.
Contains original research (e.g., qualitative, quantitative, and mixed method studies), including analyses of family court cases and judgements.
4.
Published in a peer-reviewed journal.
5.
Published in English.
Exclusion Criteria
Studies were excluded if they met the following criteria:
1.
Grey literature, including judgements and court cases that appear in isolation and have not been analysed.
2.
Doctoral thesis.
3.
They did not contain data related to parental mental illness in the context of legal proceedings in the family courts, including studies that focused on pre-court procedures such as mediation.
Search Strategy
The search was conducted in April 2020, with an update in October, 2021. Five electronic databases were used, including four social science databases (PsycInfo, CINAHL, ProQuest and Scopus) and one law database (HeinOnline: Law Journal Library). Search terms were sourced from three categories: mental illness, parents and family court. Full search terms are located in Table 1 in the Appendix. The studies were then uploaded onto RAYYAN (Ouzzani et al., 2016), a platform designed to support systematic reviews by expediting the screening of abstracts and titles. Duplicates were removed resulting in 5392 unique articles.
Study Selection
All titles and abstracts were screened by the first author applying the inclusion and exclusion criteria, with the second and third authors each blind screening 20% of the studies. Discrepancies between raters, which were found in 2% of studies, were discussed amongst the research team, while reviewing the particular paper to reach a consensus. Forty-one studies met the inclusion criteria and were included for a full text review, with the same hierarchical criteria applied. During this screening, 30 studies were excluded. The bibliographies of the included studies were hand searched resulting in one additional article included (Powell, Parish, et al., 2020). This resulted in twelve papers included in this review. See Figure 1 for an overview of the exclusion process.
Fig. 1
PRISMA 2009 Flow Diagram
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Quality Assessment
The Mixed Methods Appraisal Tool (MMAT) was used to assess the quality of the papers included (Hong et al., 2018). This allowed the reviewers to understand the limitations of available studies and identify future research directions. The MMAT was developed to allow users to assess the quality of qualitative, quantitative and mixed method studies. The MMAT was applied with the reviewers applying two screening questions and five criteria for each study, with the criteria differing based on the study design. The tool has moderate to strong inter-rater reliability, is flexible, efficient and easy to use, and has been increasingly used for mixed-method reviews (Hong et al., 2018). An overall score is not encouraged by the authors of the MMAT, and instead a table detailing how each paper rated against each criterion is provided. This table allows for readers to quickly and efficiently understand the methodological strengths and limitations of the studies included.
Data Extraction and Thematic Synthesis
Descriptive information from each study was collated in a data extraction table, including year, location, methodology and results pertaining to the research question of this review. A thematic analysis was then selected for its ability to organise, represent and summarise the data in a meaningful way, with this method being increasingly used for analysing data from literature reviews (Braun & Clarke, 2019). This review aimed to represent the experiences of parents with a mental illness in the family courts. The thematic analysis involved reading the data from each paper to increase familiarisation of the information presented. This was followed by the first author manually summarising data relevant to the research aim into concise codes. These codes were then grouped based on similar content and organised into coherent themes. Data contained in each theme were then checked back to the original article to ensure it was being accurately represented in the correct context. Discussion occurred between the authors to further define the themes. Narratives were produced for each theme with representative quotes from the reviewed papers. In the reporting, a distinction is made between the primary data reported in the identified papers and the interpretations and conclusions researchers make. The primary data includes perspectives from individual parents, along with published court judgements and psychological evaluations. The court judgements contain opinions and perspectives from a range of professionals and individuals including parents, children, other family members, judges, psychiatrists, psychologists, social workers, lawyers and child protection workers. Where possible, it has been indicated whose perspective is presented.
Results
Study Characteristics
The search yielded twelve papers comprising of eleven separate studies (Powell, Mitra, et al. (2020) & Powell, Parish, et al. (2020) produced two distinct papers from the one interview study). Court judgements and evaluations were included alongside case studies, survey data and semi structured interviews. Seven studies included in this review were qualitative, three quantitative and one mixed method. Participants ranged from whole family units (such as in case studies and Judgements), to semi-structured interviews with parents with a mental illness and mothers who had experienced family violence. Of those studies that included individuals, participants were either a majority of women or only women (when focused on family violence). Participant numbers ranged from 596 parents (Salzer et al., 2020) to 12 parents (Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020). Key study characteristics are presented in Table 2, and frequency data is presented in Table 3 (Appendix).
Quality Assessment
The MMAT was used to review the articles. This included seven qualitative studies, three quantitative (descriptive) studies and one mixed method study. The majority of studies included in this review met all MMAT criteria (see Table 4, Appendix), with only four studies not achieving all standards. Two qualitative case studies (Ezzo, 2018; McInnes, 2014), which represented court judgements did not present their rationale for how they selected the cases they chose to analyse (for example, inclusion/exclusion criteria and analytical procedure) and were therefore not deemed to adequately address the research question (criteria 1.2); nor were the results adequately interpreted (criteria 1.4). Two descriptive quantitative studies (Raub et al., 2013; Salzer et al., 2020) had predominately Caucasian/white participants which was not representative of their more ethnically diverse study population (criteria 4.2) and indicated they were at risk of non-response bias (criteria 4.4).
Mental Illness Diagnosis
Prevalence of Mental Illnesses
The prevalence of mental illness among parents and parenting challenges in the family court was explored in four studies (Raub et al., 2013; Salzer et al., 2020; Woodhead et al., 2015; Zumbach, 2016). One American study of 596 parents with a mental illness, found that 39% had been involved in a parenting dispute (Salzer et al., 2020). Raub et al., (2013) found that of the 404 parents involved in a parenting dispute, 75% of mothers and 60% of fathers had accessed mental health treatments, while 15% of mothers and 11% of fathers had been hospitalised for their mental illness. However, a German study found comparatively less prevalence of mental illness (Zumbach, 2016). Of the 139 documents included in the study, 14.39% of mothers and 19.42% of fathers were found to have at least one mental illness, with substance abuse and “mental retardation” included as a diagnosis of mental illness. A New Zealand study, which thematically analysed 110 court judgements, found that 20% of the included cases raised mental health concerns (Woodhead et al., 2015).
Mental Illness Diagnoses Reported
Although not all studies explicitly stated participants’ diagnosis, a variety of mental illnesses were reported (by the study authors, the participants, or represented in court reports by the Judge, lawyer, report writers or psychiatrists). The most common mental illness reported was depression (nine of the 11 studies). Post-traumatic stress disorder (PTSD) was reported in six studies. Anxiety, schizophrenia and personality disorders were reported in five studies, and bipolar disorder was reported in four studies. Other mental illnesses reported included adjustment disorder, delusional disorder, schizoaffective disorder, and panic attacks. For more information on those studies which discussed specific mental illnesses and the frequency of mental illnesses see Table 2 and Table 3 (Appendix) respectively.
Source of Mental Illness Diagnosis
The determination of the mental illness for parents across the 11 studies differed according to the methodology employed. For survey and interview studies, participants either self-identified as having a mental illness before participating in a study (Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; Raub et al., 2013; Salzer et al., 2020) or the person’s mental illness was disclosed to the researcher during the course of the interview (Douglas, 2018; Gutowski & Goodman, 2020). In the studies that used judgements/psychological evaluations as their primary data, it was not always clear where the diagnosis originated (Douglas, 2018; Ezzo, 2018; McInnes, 2014; Woodhead et al., 2015; Zumbach, 2016; Websdale, 2020). Court judgements referenced psychiatrists or psychologists as making or interpreting how the parent’s mental illness impacted their ability to parent, with some court judgements indicating evidence from of up to three psychiatrists (McInnes, 2014). As only extracts from the judgements were presented in each study, it was not always clear who had made the diagnosis.
It should be noted that in some court judgements, no specific diagnosis was provided, however the parents’ mental state was still deemed to impair the parents’ capacity to care for their children. For example, in one case featured in Death et al. (2019), a psychiatrist noted the mother displayed “Cluster B personality traits” (p. 7), without clarifying a specific disorder. The psychiatrist continued by indicating that the category included “the spectrum of borderline personality disorder, histrionic personality disorder, antisocial personality disorder and narcissistic personality disorder” (p. 7). He continued by reporting that the mother “may have difficulties regulating … her emotional state appropriately and that she might have difficulties with boundaries” (p. 7). Simultaneously, the same psychiatrist suggested the mother did not have any major mental illness. Other such descriptions can be seen in an evaluation completed by a psychiatrist which found a mother to have “features of dependent and borderline personality disorders” (Ezzo, 2018, p. 576) and where a psychiatrist concluded, while conducting a mental health risk assessment, that a father had “features of antisocial, narcissistic and paranoid personality” (Websdale, 2020, p. 58).
Themes
Four themes were identified to explore the experiences of parents with a mental illness in the family courts, as further detailed below:
1.
Actual and perceived influence of parental mental illness on outcomes.
2.
Family violence and the courts.
3.
The impact of the legal process on parents who have a mental illness.
4.
Supports for parents with a mental illness.
Theme 1. Actual and Perceived Influence of Parental Mental Illness on Outcomes
All studies in this review identified the ways in which a parent’s mental illness or treatment influenced the outcome of a parenting case in the family court. Some studies examined how having mental illness can impact parenting case outcomes through correlative studies or by examining factors related to mental illness taken into consideration by a family court judge (Death et al., 2019; McInnes, 2014; Raub et al., 2013; Woodhead et al., 2015; Zumbach, 2016). Others explored how parents perceived their mental illness would or had affected their case (Douglas, 2018; Gutowski & Goodman, 2020; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; Websdale, 2020)
Correlational Studies
Two studies quantitatively explored the impact of a mental illness diagnosis on reduced time with the person’s child (Salzer et al., 2020; Woodhead et al., 2015). Salzer et al. (2020), found that 88% of parents (of a total of 596), who had a mental illness and who had been involved in a parenting case reported having their mental illness bought up in court and 87% reported that their custody dispute had resulted in a loss/change in custody. Additionally, the authors found that having a mental illness increased the chances of a loss/change in custody by 57% of parents surveyed Salzer et al. (2020). Conversely, a mixed-methods study which quantitatively examined 110 case arrangements, found that having a mental illness did not significantly predict reductions in overnight contact with one’s child (Woodhead et al., 2015). However, in the qualitative analyses conducted by Woodhead et al. (2015), the parent’s mental illness was cited in “many” (number not specified) judgements where overnight contact was withheld or limited to protect the child from the “risk of physical harm, physical neglect or emotional harm” (p. 529). Overall, the correlational studies do not indicate parental mental illness has an explicit impact on court outcomes.
Parents’ Perceptions
Four papers (Douglas, 2018; Gutowski & Goodman, 2020; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020) explored how mothers perceived their mental illness was viewed by the court. Mothers reported that they felt their mental illness was bought up by their ex-partner to discredit them during their parenting case, often when allegations of domestic or child abuse were raised. One mother described, “[t]he most horrible thing is I was portrayed as an abusive mom of my own child that I would die for” (Powell, Parish, et al., 2020, p. 99). Others reported that taking prescribed medication for their mental illness would, or had disadvantaged them in the court, with one mother recalling “I don’t want this [script] filled because … I didn’t want him to subpoena my medical charts or Medicare records” (Douglas, 2018, p. 350). Another mother described feeling the judge would “make a decision that if you have a mental disability, you’re at risk [to your child]” (p. 99), without looking at the context of how her mental illness interacted with their parental capacity (Powell, Parish, et al., 2020).
Other Influencing Factors
There were other factors related to mental illness as discussed by parents, judges and other professionals, and analyses in the included correlational studies. In addition to the mental illness diagnosis, four papers explored the impact of ongoing mental health treatment on outcomes in the court was discussed (Ezzo, 2018; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; McInnes, 2014; Websdale, 2020). Mental health treatment could signify an illness was being managed or was in remission and could be a stipulation for ongoing contact with one’s child (Ezzo, 2018; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; McInnes, 2014; Websdale, 2020). Whether or not the parent was adhering to ongoing treatment could also influence the amount of the time a parent could spend with their child (Ezzo, 2018; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; McInnes, 2014; Websdale, 2020). Several participants perceived that being in ‘recovery’ impacted their case, as one mother described, “I think all of these things play into my case, that I am absolutely dedicated to my recovery, never ending recovery” (Powell, Mitra, et al., 2020, p. 5). Whether this “played” into the outcome positively or negatively, was not specified.
Other mental health-related factors impacted parenting case outcomes in six papers. A judge indicated that parents’ lack of insight into how their behaviour might impact children was taken into consideration when making a judgement (Death et al., 2019). In one case, the judge had been informed by a psychiatrist that “[the mother] appears to struggle to separate her own fears and anxieties from what might be best for her children”, stating “she does not seem to have insight into this” (Death et al., 2019, p. 7). External factors, such as financial difficulties, a lack of legal representation, housing instability and a lack of employment were seen by some parents to influence parenting case outcomes (Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020). The presence of the co-occurring factors, such as family violence and child sexual abuse (CSA) allegations were perceived by a number of authors and participants to influence case outcomes (Death et al., 2019; Douglas, 2018; Gutowski & Goodman, 2020; McInnes, 2014). This included judgements which appeared to disregard the account of mothers on the grounds of mental illness, (Death et al., 2019; McInnes, 2014) and interviews with mothers who described being disadvantaged due to their experience of family violence (Douglas, 2018; Gutowski & Goodman, 2020).
Theme 2. Family Violence and the Courts
The collective impact of mental illness and family violence on family court proceedings was noted in four studies. Some mothers described how family violence negatively impacted their ability to give evidence in the courtroom. To illustrate, one mother stated, “I was so traumatised [by the family violence] …I developed PTSD…[a]nd, I just was not able to articulate anything in the court to the judge” (Gutowski & Goodman, 2020, p. 449). Another mother stated she no longer had “faith in her judgement”, when asked how the family violence had affected her ability to engage with the legal process (Douglas, 2018, p. 349). Other mothers indicated that while their mental ill health had been caused by family violence, it had not been viewed in that context in the court (Gutowski & Goodman, 2020). One mother noted, “maybe I was depressed because of the abuse and maybe that’s why I didn’t take care of the kids. [I wish judges would] understand the abuse and how traumatic it was” (Gutowski & Goodman, 2020, p. 449).
Likewise, mothers described the negative impact family violence had on their mental health. In a study interviewing 65 survivors of family violence, 88% indicated their mental health had been negatively impacted by the abuse (Douglas, 2018). Yet in the court room, these mothers felt the need to minimise their trauma for fear of being labelled mentally ill, with one mother reporting, “If you don’t appear calm, they tell you you’re crazy. And you’re not crazy, you’re just upset” (Gutowski & Goodman, 2020, p. 450). Mothers who had experienced family violence reported that a diagnosis such as PTSD were often used to discredit them in parenting cases (Douglas, 2018; Gutowski & Goodman, 2020; McInnes, 2014; Websdale, 2020). One mother was prescribed antidepressants as a result of family violence and felt this was “used against” her in court (Gutowski & Goodman, 2020, p. 449). Another study featured a case study which described a father focusing on “ideas” (p. 84) about his wife’s mental health, including frequent inaccurate claims to child protection that his wife had schizophrenia (McInnes, 2014). McInnes, (2014) continued by arguing that the father in this case may have been abusive and that much of the mother’s symptoms may be explained by the abuse.
Three studies explicitly discussed the mother’s mental illness being presented to discredit them in family court cases where the mother had alleged CSA (Death et al., 2019; Gutowski & Goodman, 2020; McInnes, 2014). Mothers in these cases were often described as being delusional or accused of coaching the children against their father (McInnes, 2014). One mother described, “I really prefer that I were crazy than [it being] really [true]” (Gutowski & Goodman, 2020, pg.449). All examples in interviews, case studies and court judgements presented were of the mother making CSA allegations against the father, and where the outcome was given, the father gained sole care of the child/ren (Death et al., 2019; Gutowski & Goodman, 2020; McInnes, 2014).
Theme 3. The Impact of the Legal Process on Parents who have a Mental Illness
Five papers (Ezzo, 2018; Douglas, 2018; Gutowski & Goodman, 2020; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020) discussed the negative impact court proceedings and outcomes had on a parent’s mental illness. Mothers, particularly those who experienced family violence, stated the court experience had “retraumatised” them (Gutowski & Goodman, 2020, p. 451) and that they “correlate all of the legal stuff with…increased trauma” (Gutowski & Goodman, 2020, p. 451). The trauma caused by the court process was seen to be ongoing for many parents, with one woman stating she continued to work hard “to try to minimise the effects [of court]” (Gutowski & Goodman, 2020, p.451). Women who had experienced family violence found being cross examined by their ex-partner particularly harrowing, with one mother recalling “I sat shaking and crying on the stand and I was just made to sit there for three hours” (Douglas, 2018, p. 348).
One mother described a negative court experience where the judge “complained” to her lawyer about her, while another mother stated that “[L]awyers need some education on mental health and how to treat people like they’re people” (Powell, Parish, et al., 2020, p. 99). One mother indicated that her privacy was invaded during the case when her partner’s “lawyer ended up reading all my private stuff … from my psychiatrist, my counsellor, my hospital stays … he would like, throw it back in my face” (Powell, Parish, et al., 2020, p. 99). The difficulty of maintaining one’s mental health throughout the parenting dispute was challenging for participants, one mother indicating she was not “…able to fight because mentally, it put me in a state where I didn’t know what to do” (Powell, Mitra, et al., 2020, p. 5).
Two studies presented case studies of three parents with a mental illness who took their own life while being involved in parenting cases in the family courts (Ezzo, 2018; Websdale, 2020). The authors of these papers posit that the risk factors evident in each case, which included mental illness, were not taken seriously by the court and that this may have contributed to the deaths described (Ezzo, 2018; Websdale, 2020).
Theme 4. Supports for Parents with a Mental Illness
The supports parents with a mental illness had (or had not) received were reported. For many fathers and mothers, this came in the form of supportive and knowledgeable legal representation. Parents found it helpful when their legal representative knew how to discuss mental illness in the court room in a “non-derogatory” way without needing to “sugar-coat” it (Powell, Parish, et al., 2020, p. 98). One mother reported feeling supported when her lawyer accepted emotional expression, recalling her lawyer’s assertion that, “[if] you need to cry, you cry,” even in the courtroom (Douglas, 2018, p. 349). Parents also expressed appreciation for lawyers who took the time to explain things clearly and put their “anxieties at ease” (Powell, Parish, et al., 2020, p. 97). Conversely, parents described their mental illness being “exacerbated” and a feeling of not being “heard” when being represented by a lawyer who did not understand their mental illness (Powell, Parish, et al., 2020, p. 98).
Participants across three studies (Douglas, 2018; Ezzo, 2018; Powell, Mitra, et al., 2020) identified the importance of mental health support during separation and court procedures. One mother highlighted the benefit of a counsellor teaching her “coping mechanisms” to help her with child handovers (Douglas, 2018, p. 348) and another described entering psychotherapy to learn adaptive coping skills to deal with the stress of the divorce litigation (Ezzo, 2018). One mother, who did not receive adequate mental health support, was left feeling “confused” (Powell, Mitra, et al., 2020, p. 5).
Parents in two studies discussed the support they received from friends, family, community and church members as relating to their mental health management, support in the courtroom and helping “with my kids” (Powell, Mitra, et al., 2020, p.4). One parent expressed frustration at not being able to use her supports when at the court, “I said can’t we just finish this? Because… I can’t even talk to anyone to get support while I’m still under oath” (Douglas, 2018, p. 348). Some parents (gender not specified) described isolating themselves and becoming “uninvolved with people” due to their mental illness (Powell, Mitra, et al., 2020, pg.4). One mother highlighted the “need for support groups” for parents with a mental illness who were going through the court system (Powell, Mitra, et al., 2020, p. 5).
Discussion
The aim of this review was to identify and critique the scope of research relating to parental mental illness in the family courts and understand the experiences of parents with a mental illness who engaged with the family courts on parenting matters. Results from the review indicated that parental mental illness influenced court proceedings and outcomes of parenting cases but did not always predict it. Parents did however perceive their mental illness to have a negative impact on their ability to engage with the court, and on their parenting outcome. In particular, mothers who had experienced family violence reported that their mental illness disadvantaged them by being used against them by their ex-partner in court or by reducing their capacity to engage in the court processes. Both parents and authors noted that engaging with the courts exacerbated mental illness when paired with other risk factors. Parents also identified their best supports when engaging in family court proceedings along with supports they would have liked to receive. The MMAT results indicated that the overall quality of the included articles was good. A small number of articles required greater transparency about the methodology employed and to take further steps to include a diverse and representative sample.
The presence of parental mental illness was not found to be a predictor of outcomes in all the identified studies. A questionnaire conducted in the US found parents with a mental illness reported an increased risk of having less time with their child through family court proceeding than those without a mental illness (Salzer et al., 2020). However, a separate US study using court clinic recommendations did not find mental health treatment, or a history of psychiatric hospitalisations, predicted a parent being awarded sole parenting time (Raub et al., 2013). Additionally, a New Zealand analyses of court judgements reported that having a mental illness did not reduce the likelihood of a child being allowed on overnight stay with their parent (Woodhead et al., 2015). These studies employed different collection methods (questionnaire/analyses of court documents), were conducted in different countries (USA/New Zealand), and examined different predictors (less time/sole parenting/overnight stay) which may account for differences in findings. Additionally, both Raub et al. (2013) and Woodhead et al. (2015) analysed other risk factors as predictors of loss of parenting time alongside mental illness, with a history of arrests and child protection involvement found to result in a reduced likelihood of parenting time (Raub et al., 2013). Such data were not examined by Salzer et al. (2020). Parenting cases will frequently include a number of risk factors, all of which will be discussed in the judgement or recommendations if bought up during the proceedings, however not all factors discussed will influence the parenting case outcome. An Australian Family Law Council (2015) report noted a survey of Family Reports (as used in parenting cases) found 31% of cases had three risk factors, and 26% had four or more risk factors. This finding may indicate that although mental illness may be considered a risk factor when making parenting orders, it is not the primary risk factor directly impacting outcomes. Conversely, given that mental illness is associated with a greater risk of family violence (Trevillion et al., 2012) and substance abuse (Toftdahl et al., 2016) it may be that the causative and exasabating nature of mental illness was represented fully in addtion to these areas.
Although mental illness may not necessarily predict family court outcomes, how parents perceived the court to view their mental illness was highlighted in a number of qualitative studies. Parents reported concealing their mental illness or being reluctant to seek support, due to fears about this having a negative impact in the court (Douglas, 2018; Gutowski & Goodman, 2020; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; Websdale, 2020). This finding supports other community-based research indicating parents with a mental illness experience stigma (Reupert et al., 2021) and fear losing custody of their child (Ackerson, 2003; Khalifeh et al., 2009). Although parents’ reluctance to seek mental health support during family court proceedings is understandable, it may also be counterproductive. Other parents have found that engaging with formal and informal support can increase parental capacity and the ability to cope with stressors (Reupert et al., 2015; Risley-Curtiss et al., 2004), which in turn may increase chances of time with one’s child.
Family violence and CSA allegations were discussed by authors and participants in numerous qualitative studies (Death et al., 2019; Douglas, 2018; Gutowski & Goodman, 2020; McInnes, 2014; Websdale, 2020). When highlighted, the authors and participants indicated the court treated mothers unfairly or reported that the system was more challenging for the mother. Many mothers posited that they were placed in a system that did not acknowledge the trauma that family violence had inflicted (Douglas, 2018; Gutowski & Goodman, 2020). Mothers reported that the trauma and lasting negative effects of family violence impeded their ability to participate in court (Gutowski & Goodman, 2020). This finding is consistent with research into the impact of trauma on cognitive functioning. For example, Van der Kolk, B (2014) discussed how trauma can reduce cognitive functioning, including the ability to make decisions, regulate emotions and plan. Given the complexity of the legal system and the stressful nature of the litigious court room, it is possible the effects of trauma would impede mothers’ active participation. Additionally, some authors suggested mothers who made allegations of CSA were subsequently accused of having a mental illness (Death et al., 2019; Gutowski & Goodman, 2020; McInnes, 2014). Alternatively, some mothers perceived that their mental illness was used in order to discredit them in their parenting case, leading to them having less time with their child (Death et al., 2019; McInnes, 2014). The issues presented in these studies highlight a large body of literature which indicate gendered family violence continues to be a significant issue impacting mothers in the family courts (e.g., Kaspiew et al., 2015).
For many parents, the demands of family court proceedings negatively impacted their mental illness (Douglas, 2018; Ezzo, 2018; Gutowski & Goodman, 2020; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020). Mothers who had experienced family violence felt that when engaging in parenting cases against their perpetrator, the court had retraumatised them (Gutowski & Goodman, 2020). Two studies highlighted that the impacts of the family court, along with additional risk factors such as family violence and substance abuse, caused parents to take their life (Ezzo, 2018; Websdale, 2020). Although family court involvement was not the only stressor that influenced the loss of life in these studies, another systematic review found that family conflict was among the most reported life events associated with suicidal ideation and behaviour Liu & Miller (2014). Overall, such studies highlight the additional stress of litigious court involvement on mental illness, particularly for those who have recently experienced family violence.
Although parents with a mental illness faced barriers when engaging with the family court, they also highlighted enablers to ameliorate these disadvantages. Legal representation that was empathetic and informed about mental illness was mentioned by mothers and fathers to be valued (Douglas, 2018; Powell, Parish, et al., 2020). Parents also found ongoing professional mental health supports gave them strategies in coping with the ongoing stress related to the family law process (Ezzo, 2018; Powell, Parish, et al., 2020). Additionally, family and friends were highlighted to have been a support through the parenting case, although a lack of support and isolation was also noted (Powell, Mitra, et al., 2020).
Results on the MMAT highlight a need to recruit culturally diverse samples population (Raub et al., 2013; Salzer et al., 2020). This is consistent with a wider phenomenon in research of under-representing the experiences of diverse cultural populations (Hall et al., 2016). Relatedly, eight papers in this review represented of both mothers and fathers, through case studies, court judgements or questionnaires (Death et al., 2019; Ezzo, 2018; McInnes, 2014; Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; Raub et al., 2013; Salzer et al., 2020; Websdale, 2020; Woodhead et al., 2015; Zumbach, 2016). Two studies included only female participants as they were exploring a mother’s experience of having family violence perpetrated against her (Douglas, 2018; Gutowski & Goodman, 2020). Two further studies (across three papers) included more female than male participants, despite recruiting for both mothers and fathers (Powell, Mitra, et al., 2020; Powell, Parish, et al., 2020; Salzer et al., 2020). There was no study which specifically explored fathers’ views or experiences of having a mental illness in the family courts. The lack of representation may in part be caused by intersectional stigma, characterised by the convergence of stigmatised identities such as race, gender and sexuality (Turan et al., 2019). These intersecting identities often result in high levels of systemic and explicit disadvantage and discrimination. Simultaneously, those who experience intersectional stigma are less likely to speak out about their experiences, and as such are less likely to participate in research. It is important to recognise that many important voices are not being explored in this field of research.
Parental mental illness was not the primary phenomena being explored within the included studies, with the exception of Powell, Mitra, et al. (2020), Powell, Parish, et al. (2020) and Salzer et al. (2020). Instead, research questions/aims focused on family violence (Douglas, 2018; Gutowski & Goodman, 2020; Websdale, 2020), CSA allegations (Death et al., 2019; McInnes, 2014), risk assessment (Ezzo, 2018; Websdale, 2020) and predictors of custody (Raub et al., 2013; Woodhead et al., 2015; Zumbach, 2016). The inclusion of mental illness across these studies indicates that it plays a role in a variety of issues. However, the frequency of which mental illness is discussed also suggests that future research should focus explicitly on parental mental illness in the context of the family courts.
The results of the MMAT indicated transparency is needed when representing judgements and court documents (cases) in research analyses. When selecting and discussing cases, the procedure and justification for selecting specific examples is needed, to ensure the context of these cases are apparent to the reader. Explicit search criteria for inclusion of studies and more details regarding the included cases would allow the reader to substantiate and interpret the findings more clearly. This is particularly important given the complexity of factors that have been shown to contribute to a family court case.
Limitations
According to the results of the MMAT, identified studies did not represent diverse populations, which meant that in this review, parents who are culturally and linguistically diverse were not represented. The MMAT also indicated a lack of transparency around how some authors selected court judgements for analyses. This reduced our ability to interpret data within the context in which it was collected. The review was limited by not including grey literature, such as government documents and court judgements which might have provided further policy context for the results.
Many family separation matters will be resolved through mediation prior to going to court (Kaspiew et al., 2015), however studies in this review were only included if they featured families that had their parenting case heard in the family court. Including the mediation phase in other studies or reviews may offer additional insights into the impacts of mental illness on participation and outcomes of mediation.
Implications for Practice
This study highlighted the experience of many parents who have a mental illness while going through a parenting matter in the family court. These parents face additional challenges which may impact their ability to engage with the court. Services and individuals working with these families need to provide integrated support aimed at addressing the clients’ intersecting needs (such as family violence, homelessness, and a lack of supports). The importance of court professionals’ empathy and sensitivity was highlighted in a number of studies, indicating training around mental illness and the impacts of family violence should be promoted to those working in the family law field.
This review indicated that stigma related to mental illness prohibits many parents from seeking the supports they need. To promote help-seeking for those involved in parenting matters, information around the protective nature of help-seeking for mental illness when involved in the courts should be offered to parents. Additionally, parents might benefit from being informed about what the court takes into consideration as related to mental illness in parenting matters (e.g., adherence to medication, engagement in treatment, and insight about how their mental illness affects their parental capacity).
Implications for Research
This review highlighted the scarcity of research around parents with a mental illness in the family court. Future research is needed to better understand the experiences of these parents and their families. Such research might specifically target the experience of parental mental illness in the courts. It might allow for the intersectional complexities which often exist in the family court and represent the unique experiences of mothers, fathers and children. Research exploring populations which experience intersecting discrimination and disadvantage is needed, including those from diverse cultural backgrounds, first nations peoples, members of the LGBTIQA+ community and those who have a disability. Representing these voices in future research will allow for a more nuanced understanding of how mental illness interacts with intersecting discrimination, which can be used to inform targeted supports and recommendations for practice changes. Intersectional theory is increasingly included in a wide range of research to discuss intersecting identities and systems of power and may provide a relevant framework for future research (Bauer et al., 2021). Finally, further research may be conducted with court professionals, including lawyers and judiciary to better understand their experiences of parental mental illness. Such studies may provide further understandings of how parental mental illness is perceived in the courts, in addition to identifying court professionals’ learning needs.
Conclusion
The current review suggests there is limited research investigating parental mental illness in the family courts. The research that was included in this review illuminates the complexity of mental illness in the family court, particularly for those families that face additional challenges. How parents perceive the court to understand mental illness, the interaction between mental illness and family violence, and the impact of court proceedings on mental illness were all highlighted. Further research is needed on parental with a mental illness in the family courts, including the experiences of multiple stakeholders and diverse populations. Such research may be used to enhance supports and reduce barriers for families where a parent has a mental illness.
Compliance with Ethical Standards
Conflict of Interest
The authors declare no competing interests.
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Parent* OR mother* OR father* OR guardian* OR care-giver* OR step-mother* OR step-father*
Mental Illness
“Mental illness*“ OR “mental disorder*“ OR “mental health” OR “Affective Disorder*“ OR “Autism Spectrum Disorder*“ OR “Bipolar Disorder*“ OR “personality disorder*“ OR “Dissociative Disorder*“ OR “mental disabilit*“ OR “psychiatric disabilit*“ OR “post traumatic stress disorder*“ OR PTSD OR “schizophrenia*“ OR “Neurodevelopmental Disorder*“ OR depression OR anxiety OR “Psychiatric illness*“ OR “Psychiatric disorder*“ OR “mood disorder*“ OR psychosis OR “psychotic disorder*“ OR insanity OR SLD OR “learning disorder*“
Family Courts
“Family court*“ OR “Family law*“ OR “divorce court*“ OR “custody dispute*“ OR “circuit court*“ OR “divorce law*“ OR “child custody”
aExample search in Scopus: (ALL (parent* OR mother* OR father* OR guardian* OR care-giver* OR step-mother* OR step-father*) AND ALL (“Mental illness*“ OR “mental disorder*“ OR “mental health” OR “Affective Disorder*“ OR “Autism Spectrum Disorder*“ OR “Bipolar Disorder*“ OR “personality disorder*“ OR “Dissociative Disorder*“ OR “mental disabilit*“ OR “psychiatric disabilit*“ OR “post traumatic stress disorder*“ OR ptsd OR “schizophrenia*“ OR “Neurodevelopmental Disorder*“ OR depression OR anxiety OR “Psychiatric illness*“ OR “Psychiatric disorder*“ OR “mood disorder*“ OR psychosis OR “psychotic disorder*“ OR insanity OR sld OR “learning disorder*“) AND ALL (“Family court*“ OR “Family law*“ OR “divorce court*“ OR “custody dispute*“ OR “circuit court*“ OR “divorce law*“ OR “child custody”)) AND PUBYEAR > 2008 AND PUBYEAR < 2022 AND (LIMIT-TO (DOCTYPE, “ar”)) AND (LIMIT-TO (LANGUAGE, “English”)) AND (LIMIT-TO (SRCTYPE, “j”))
Table 2
Study Characteristics
Authors
Year
Location
Methodology
Participants/Judgement/Case
Mental Illnesses Discussed
Death, Ferguson & Burgess
2019
Australia
Thematic analysis of judgements
357 Family Court judgements of cases involving CSA allegations
PTSD, Personality Disorders
Douglas
2018
Australia
Thematic analysis of semi-structured interviews
65 mothers who had experienced family violence and engaged with legal system.
12 low-income parents with psychiatric disabilities facing challenges to child custody or visitation (83% female) (same data set as other Powell (2020) study)
