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It is important to understand how a Court will look at how a mother or father fulfills their parental duties.  It is through those criterion that a Court judges worthiness.  Custody determinations are often swayed by how a parent behaves not only to the children but also to the mother or father.   The lodestone is whether the parent provides well for the emotional and physical needs of the children.  The Courts tend to make that judgement based upon the individual needs of each child.  Certainly providing the child’s basic necessities is very important.  This can be defined as food, shelter, protection and affection.  The Court states “a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child‘s life.” In the Interest of H.B.M.Y., 2017 Pa. Super. Unpub. LEXIS 3312, *9-10.

I have mentioned this before on this blog and the fact is that the Court values investment.  Yes, investment in the child.  This means investment not in the monetary sense – but in the emotional sense, in the temporal sense.  Spend time with them.  Do their homework with them.  Coach and attend their sports.  Plan activities with them.  Invest your time and love in them.  This is the best way to parent and the surest way to have a Court look well upon you in custody determinations. 

If you want to lose your children and make them wards of the Court, one of the best possible ways to accomplish this as quickly as possible is to have a substance abuse problem.  In, In the Interest of M.P., 2017 Pa. Super. Unpub. LEXIS 3328 (Pa. Super. Ct. Sept. 7, 2017), the child, M.P., was the youngest of three children.  Two previous children had been taken from the parents due to substance abuse, mental health and a criminal history. 

In the matter at bar the child was born with a methadone addiction if that can be believed.  This, of course caused the child to be immediately declared a ward of the state and taken away from the mother.  The Court, if there is a chance for rehabilitation of the parents, typically establishes a Family Service Plan that creates goals and a pathway that hopefully results in the parents getting clean and proving their ability to parent.  The parents of course failed to follow through and missed appointments, failed drug screens repeatedly and importantly failed Court ordered mental examinations and assessments.  Based upon these failures, the Court moved to terminate parental rights. 

Rights can be terminated for several reasons.  In this case, “the repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.”

The Court is then tasked to examine the parents and establish by clear and convincing evidence that in the best interests of the child, parental rights should be terminated.  The Court indicated that the trauma of removal from the parent is far outweighed by the stability and love the child would receive in a foster home.  The Court upheld this determination.

The very strong and clear takeaway here is that if you have a substance abuse problem, you need to deal with it immediately and with permanency.  The consequences to the custody of your children are dire. 

 

 

 

Time is an important factor in custody determinations.  The bottom line is that the parent that spends the most time with the child will be advantaged as far as any custody determination by a Court. In  M.J.N v. J.K., 2017 Pa. Super. LEXIS 623, *7-10, 2017 PA Super 268, 2017 WL 3568636 (Pa. Super. Ct. Aug. 18, 2017) the father was a busy businessman that spent much time at work and travelled relatively frequently.  As a result of this travel and the resulting time away from his child, the Court indicated that the mother should have joint but primary custody.  Specifically, the father did not always exercise his custody periods.  This seems unfair.  It many ways it is unfair to the primary breadwinner of the relationship.  It does not seem fair that the father, who works to pay primary child support should have this used against him.  Nevertheless, the stay at home individual who can spend more actual time with the child will have custody factors of that nature found in favor of this individual.

Physical availability is also important when determining the individual best available to provide continuity and safety and the simple fact that a parent is around more often will positively influence a Court.  The Court advised the father that he should spend more time with his son.

The bottom line here is presence and involvement are the lodestone of custody determinations, simply because such things demonstrate investment in a child’s best interests.

This post is about a real courtroom experience.  Not caselaw, but real courtroom experience.  Take my word for it.  Do not be controlling.  Do not try to prevent our ex-spouse or the child’s father or mother from obtaining custody simply to maintain control.  It does not and will not work.  I was representing a client who had a child out of wedlock.  It was a sad story of almost marriage and betrayal.  Yes, a bit sordid, but frankly most of the stories I encounter are similar.  One currency that runs through each story is two people who both think that they are right when in reality the truth and circumstance lies in between.

In this case the mother, perhaps well meaning, tried to prevent the father from obtaining some level of custody of their ten month old son.  She attempted to present evidence that breast feeding was imperative to the child.  She cried.  Caterwaul really.  Frankly, I could not determine whether the crying was real, partially real or simply manipulative.  Her counsel argued that it was in the best interests of the boy to remain in the complete physical custody of the mother with partial visits to the father.   Frankly, the implication was that a man with little actual child rearing experience could not perform the duties of the mother as well as the mother.  It was a bit insulting that the argument was basically that a mother is a more capable parent than a father.

My argument was simple.  There was nothing about my client, the boy’s father that would prevent him from being a good father.  A boy should have some time with his father.  It was nothing more complicated than that.  It won. 

The take away here is that if you think you are the only good parent, the best parent, the Court will not uphold that belief unless the other party has a substance abuse problem, abuser or criminal.  Even given that situation, the Court will still look to provide supervised custody.  You will not be able to prevent a mother or father from obtaining some level of custody and frankly, attempts to do so, will fail. 

Know this.   

One of the most important custody factors is which parent will permit and encourage contact by the other party.  This seems to be one of the most important custody factors as it constantly appears in custody determinations.  In Kidane v. Grosu, 2017 Pa. Dist. & Cnty. Dec. LEXIS 2434, *1 (Pa. C.P. Aug. 1, 2017), a case that we have mentioned before, the father had custody of the child and informed the mother that the child was sick and had a fever.  The mother indicated that her parental instincts took over and she drove over to the father’s home to help with the sick child.   The father when the mother showed up at his house, indicated that he could take care of his child and told her to leave.  He also called the police on the mother.  The Court found that the father had prevented access to the child and found that the custody factor was in favor of the mother.  The important take away is that unless doing so will expose the child to a dangerous or abusive situation, it is almost always best to allow as much contact as the other spouse desires.   This may sound a bit counterintuitive – simply because attorneys almost always tell their client to be wary of establishing a precedent of relinquishing custody to the other party.  However, if you read enough case law, you rapidly come to the conclusion that allowing contact is best. 

It cannot be emphasized more, that one of the relevant custody factors is how the ex-spouses comport themselves with each other and in front of the children. In, Kidane v. Grosu, 2017 Pa. Dist. & Cnty. Dec. LEXIS 2434 (Pa. C.P. Aug. 1, 2017) the mother filed a petition to modify custody for various reasons.  The case is illustrative of how a Court views the communications and behavior of parents in a custody action.  In Kidane, the father had majority custody and the mother was attempting to change that schedule.

Both parties entered evidence with regard to their communications.  The mother saved a ton of emails between the parties.  They were particularly vituperative.  One email specifically indicated that if Father did not get the mother’s cooperation, he would be uncooperative with regard to custody.  It was clearly a threat.  The Court also noted that the father continued to express anger and bitterness about the breakup of the marriage. 

The Mother indicated that the father remains “extremely bitter” about custody.  The mother likewise was angry and difficult in her communications and emails.   The emails contain emotional and disparaging statements which are accusatory by both parties.  This is clearly a negative in the eyes of the Court.   Of all the negative statements, the worst statements seem to be the father’s statements threatening to limit the mother’s access to the child.  The Court found on this factor, in favor of the mother as although her statements may be emotional and cruel, she did not threaten to keep the child away from the father. 

The take away here is that negative statements and emotional statements are typically part of these custody battles and are accepted if not liked by the Court.  However, threats concerning the child will result in losing your battle.

 

 

 

A Court has wide discretion in determining alimony payments.  Of course, the two most important factors in making an alimony determination are (1) the income disparity between the parties and (2) the manner and lifestyle of the spouses during the marriage.   The Court’s standard of review in these matters is as follows:

“Our standard of review regarding . . . [an] award of alimony is whether the trial court abused its discretion.” Moran, 839 A.2d at 1097. An award of alimony should reflect the “reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay.'” Id. (quoting Twila v. Twilla, 445 Pa. Super. 86, 664 A.2d 1020, 1022 (Pa.Super. 1995)). Further, “alimony following a divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill.” Id. (quoting Twilla, 664 A.2d at 1022) (emphasis in original). “The purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.” Id. at 1096 (quoting Twilla, 664 A.2d at 1022).

Wife claims that: (1) the award of $500.00 per month for a period of 24 months was insufficient; (2) the award included an improper penalty if she were to challenge the alimony award; (3) the Master “downplayed the conspicuous disparity between Husband’s income of $5,692.87 and Wife’s income [of] $1,765.91 stating that the difference is not large,” Wife’s Br. at 36; (4) Husband’s expert’s testimony should not have been admitted; and (5) because Wife is in school and it will take 4 years of part-time study for her to complete her bachelor’s in education, the alimony award should be for a period of 4 years rather than 24 months.

The trial court upheld the Master’s findings indicating that the Master considered the relevant factors and considered the Pennsylvania Support Guidelines in determining the duration and amount of alimony.  The Court found that any deviation from the guidelines was supported by the evidence as submitted to the Court.   This included the relative education, income disparity and other relevant factors.   Notably the Court indicated that the Master acknowledged that Husband had a higher income than Wife and that the difference in earnings would likely continue into the near future. The Master determined that the factor regarding the parties’ incomes weighed in Wife’s favor. We find the trial court did not abuse its discretion in upholding the Master’s Recommendations concerning the award of alimony.  Granville v. Granville, 2017 Pa. Super. Unsub. LEXIS 3138, *16-22, 2017 WL 3574186 (Pa. Super. Ct. Aug. 18, 2017)

The takeaway here is that Master’s decisions are difficult to challenge unless they are very obviously inequitable and unexplainable.   Certainly, the abovementioned amounts are not inequitable enough to be challenged. 

It is important to take care of yourself physically while you are in the middle of a divorce.  As I have stated, it is very easy to fall into alcohol and other forms of self-medication to deal with the emotional fallout from the divorce.  I have heard it said that divorce is like a death, only a death that lasts for two years.  It is easy to focus on the divorce and your eroded relationship with your ex-spouse and blame them for your misery and anger.   They are your constant enemy never far from your mind.  You need to focus your negative emotions on something that will result in more positive results.  Might I suggest, going to the gym and lifting weights. 

Lifting weights is a great exercise for men and women – in particular women, who need weightbearing exercise to fight osteoporosis and osteopenia.  It also has the secondary salutary effect of keeping you out of the bar and frankly, it positively enhances your appearance.  Exercise is a great anti-depressant and the science completely supports this. 

I would suggest going to the gym of your choice and asking a trainer to teach you how to squat and deadlift.  If you cannot afford a trainer, then You Tube has innumerable videos that give you the nuts and bolts of squatting and deadlifting correctly.  These should be the core of your workouts with pull ups, dumbbell bench press and dumbbell incline press and finally standing military press with a barbell being the other base exercises.  If you do these exercises, you can with a healthy diet make enormous changes to your life and your appearance.  Plus, when you walk out of the gym, I would bet you will feel tired, but much better emotionally then when you first walked in the door. 

Exercise. 

Courts will reweigh custody factors and will look at the fundamental basis for another Court’s determinations.  The trial Court made the following abbreviated determinations in M.J.N v. J.K., 2017 Pa. Super. LEXIS 623, 2017 PA Super 268 (Pa. Super. Ct. Aug. 18, 2017) which are illustrative of how a Court makes its determinations regarding custody factors:

1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. – The Court weighed this slightly in favor of the Mother. Father was not always able to be present at the time the child is dropped off for the Father’s custodial periods. While his live-in girlfriend is seen by both parties to be an appropriate caregiver, Father alleges Mother refuses to leave the child in the girlfriend’s custody.  Mother portrays herself as the selfless parent in this relationship, but Father testified Mother speaks to him in rude and derogatory terms.

For his part, Father claims Mother interferes not only in his exercise of physical custody, but also in his attempts to speak to the minor child on the phone.  Father claimed Mother will manipulate the custodial schedule and interfere in activities he has planned with the child, such as on Father’s Day. Mother claims she e-mailed Father a couple of times to verify the pick-up time clearly stated in the prevailing custody order to see if she could attend church with the child. The Court concluded the truth is somewhere between the versions of the parties.

2. Present and past abuse committed by a party or member of the party’s household, whether there is continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. – The Court weighed this factor in favor of the Father. The Mother has been physically, verbally, and emotionally abusive to the Father.  However, there was not any evidence Mother abused the minor child. There was not any evidence indicating or even implying Father has been abusive to the minor child.

3. The parental duties performed by each party on behalf of the child. – This factor is weighed slightly in favor of the Mother. She is primarily a stay at home mother who works refinishing and repurposing furniture in her garage. As a result, she is the parent who most frequently is involved in taking the child to and from school, to and from athletic practices, and to medical or dental appointments. Each parent testified to their ability to ensure the child is fed, clean, and dressed appropriately. Each parent appropriately attempts to keep the child involved in extracurricular programs. Father has tried to interest the child in playing the keyboard, while Mother’s interests seem more focused on keeping the child enrolled in athletic activities.

4. The need for stability and continuity in the child’s education, maturity, and judgment. – This factor is weighed in favor of the Mother. While there is nothing wrong with Father’s having a busy professional life that requires occasional travel on business out of the area, for the simple fact that Mother is more physically available, she can offer more stability and continuity in the child’s life. She is also more attentive to taking the child to athletic practices. She attends his games and competitions more frequently than Father. Because of the interest by the parties in keeping the child in his current school with his friends, Father also faces a challenge in transporting the child back to school on weekday mornings as well as to athletic practices in the evening.

5. The availability of extended family. – This factor is weighed in favor of Mother.  Father’s parents live in Vermont, where he takes the minor child to visit during vacations. He does not have any other family in the area, although he lives with his girlfriend and they have discussed getting married.  Mother lives with her other son, with whom the minor child has a very strong attachment.  While Mother does not speak with her biological parents or her sister, she has been able to keep up a cordial and close relationship with her grandparents and the mother of her former paramour, Ms. Andrews.  Mother speaks with Ms. Andrews each day and Ms. Andrews takes both boys out for dinner each Monday night.

6. The child’s sibling relationships. – This factor is weighed in favor of the Mother. As stated above, Mother has another son from a previous relationship. That boy, who is two years older than Z.K., is a constant companion and playmate for Z.K..  Mother also had a daughter who unfortunately passed away when she was approximately four years old. The loss of this child lingers over the relationship between the parties and their son.

7. The well-reasoned preference of the child, based on the child’s maturity and judgment. – This factor is weighed in favor of Mother. During an in-camera session with the minor child, in which both parties waived their personal attendance and that of their respective counsel, the Court could learn of the strong attachment the minor child must his half-brother. Although this may be an aspect of his relatively young age, the potential of not being around his half-brother Owen and participating in activities with him is the single largest impediment to Father’s being able to establish the case for primary physical custody.

In addition, moving forward, Father is strongly urged to make more of an effort to take his son to the practices for the child’s various athletic activities, to have the child there on time, and to attend as many practices and competitions as he can, even those events on Mother’s custodial periods. It is also important for Father and his paramour to understand they have a growing boy to help raise who is not and does not want to be treated as if he is a toddler.

8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. – This factor is weighed in favor of Father. There was substantial evidence of Mother’s rudeness and intimidating personality, including cursing and uttering derogatory comments about Father in the presence of the minor child. Whether one believes the minor child was coached or not by Mother, based on the Court’s observation during the in-camera session, this behavior by Mother seems to have made little impact on the child. There was not any evidence of Father’s attempting to turn the child against Mother.

9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs. – This is a neutral factor. Both parents testified to their love and care for their son. They both possess the qualities and capabilities to provide for a loving, stable, and consistent environment for the child. Based on the in-camera testimony, it is clear to the Court Father and the minor child have two very different perceptions of the level of involvement between Father and child.  Father has a busy professional life, but the Court suggests he become more actively engaged when he is at home with his son. Mother can take the child to school, to his practices, and have him home and in bed on a routine schedule, but she must also recognize the importance of encouraging the relationship between the child and Father.

10. Which party is more likely to attend to the daily physical emotional, developmental, educational, and special needs of the child. – This factor is weighed slightly in favor of the Mother. Again, by sheer weight of the fact she has performed most of the daily activities of getting the child to school, to his athletic practices, and to any medical or dental appointments, she has a longer record of performing these tasks. The presence of the minor child’s half-brother cannot be understated in its effect on the child’s entire outlook on all custodial questions.

11. The proximity of the residences of the parties. – The parties are approximately 20-30 minutes apart, based on the amount of traffic when one is driving between Coplay where Mother lives and Upper Macungie where [Father] resides. This factor is weighed in favor of Mother, based on her proximity to the minor child’s school and to his athletic practice location.

12. Each party’s availability to care for the child or ability to make appropriate child-care arrangements. – This factor is weighed slightly in favor of Mother. As stated above, because [Mother] works from home, she does not need to rely on any back up child care. If needed, she can call upon the grandmother of the minor child’s half-brother to watch the children.  Father is at work during the day, but his paramour is able to arrange her work schedule so that she can be home when the minor child arrives for his custodial periods. However, if the child had to come home from school because he is sick, it seems [Mother] is the only one who could accommodate that situation without any great difficulty.

13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party. – This factor is weighed in favor of Father.  Father presented ample testimony that Mother is rude, combative, and possibly a very unpleasant person to be around to her neighbors and former boyfriends. She has a history of physically assaulting men in her life, and an apparent tendency to lie on numerous occasions when confronted with a number of discrepancies about her conduct. She has also formed a close bond with the minor child which remains unshaken even after all the obnoxious conduct to which she may have exposed her son. [Father] appears to be a caring individual who is portrayed as being distracted by his professional responsibilities. The testimony about Father’s level of interaction with the [Mother’s] family during the physical decline and eventual passing of Mother’s daughter raises questions about his honesty, but has little to do with his relationship with the minor child.

14. The history of drug or alcohol abuse of a party or member of a party’s household. – This is a neutral factor. Neither party characterized the other as abusive of drugs or alcohol.

15. The mental and physical condition of a party or member of a party’s household. – This factor is weighed slightly in favor of Father. While neither party nor the other extended family members displayed any physical or mental health conditions which would impair their ability to care for the child, the wildly varying contradictions in the depictions of various episodes in the lives of the parties leads the Court to conclude it will require each party to obtain a mental health evaluation within 60 days of the date of this Order. Said evaluation will be for the purpose of determining if either or both parties are recommended for any follow-up treatment or counseling as it relates to the ability of the parties to co-parent and to participate in raising their son.

16. Any other relevant factor. – This factor is weighed in favor of Father.  Mother admitted she pled guilty to a summary level offense of harassment in New Hampshire in 2009.  Mother was criminally charged after an altercation with Father. Beyond that one incident, Mother was described as frequently assaulting both Father and the man she was involved with in the last two years. This indicates to the Court the mental health evaluation of Mother also needs to include an evaluation if she needs to attend anger management training.

The Father disagreed with the Court’s determinations and felt that the evidence did not support the Court’s conclusions.  The appellate Court agreed with many Father’s contentions, recognizing that the Court’s conclusions based on the evidence in the record are not supported by the Court’s findings and in some instances, contradict those findings. For example, the Court determined that factor (1) weighs slightly in Mother’s favor, yet the evidence the Court relates suggests that this factor should at a minimum be neutral. Also, the Court’s discussion regarding factors (13) and (16), which were weighed in favor of Father, shows the Court’s recognition of Mother’s rude and combative behavior; however, the Court simply concludes that it has no effect on the Child. The appellate Court was also troubled by the Court’s emphasis, almost to the exclusion of other factors, on the Child‘s relationship with his half-brother. Moreover, the Court appears to overlook its own ruling that it found Mother in contempt of the prior custody order. Interestingly, the Court found factor (5) in favor of Mother, recognizing that she has maintained a close relationship “with her grandparents and the mother of her former paramour, … who takes both boys out for dinner each Monday night.”  However, the Court also finds Mother lacks a relationship with her own parents and sister, who live in the vicinity.  The takeaway here is that the Court weighed evidence – which the Court is allowed to do – but the Court seemed to ignore completely contradictory evidence in an illogical way.  The Court cannot “cherry pick” its facts.

The thrust of Father’s second and third issues rests on his allegation that the custody schedule imposed by the Court deprived Father of in-person contact with the Child for periods of up to ten days at a time, after having had a custody schedule in place that afforded a 50% split of time with the Child.  Although the Court determined that these ten-day periods are minimized because daily phone contact is permitted, Father identifies testimony revealing that Mother is uncooperative and interferes with Father’s attempts to communicate freely with the Child. Additionally, Father asserts that the telephone contact does not replace the lack of in-person custody time, as suggested by the Court. In this same vein, Father contends that the Court failed to provide a “right of first refusal,” which would allow custody time for Father if Mother is unable to care for the Child during her regular custody time, i.e., instead of using a babysitter or some third party. As part of this argument, Father also claims that the Court erred by not providing additional custody time during the summer months when the Child is not in school.

The Court also appeared to again overlook the fact that it held Mother in contempt of the prior custody order.  The appellate Court felt that this discrepancy was an important factor

Likewise, we are troubled by the Court’s conclusion that factor is neutral in light of the fact that it directed that Mother’s mental health evaluation should include a determination as to whether she needs anger management counseling because of the confrontations Mother has had with Father and others, which at times occurred in the Child‘s presence. The Court’s discussion relating to this factor appears to highlight Father’s shortcomings, i.e., the need for Father to become more actively involved despite his busy professional life. Yet, the Court emphasizes Mother’s ability to take the Child to school, his athletic practices, and keep a routine schedule apparently because she works from home. Again, we conclude that the Court’s conclusion is unreasonable.

Father contends that despite the Court’s recognition of Mother’s rude and abusive behavior towards him and others in the Child‘s presence, the Court concluded that “she has also formed a close bond with the minor child which remains unshaken even after all the obnoxious conduct to which she may have exposed her son.” However, Father also points out that the Court found that Mother’s “rudeness and intimidating personality, including cursing and uttering derogatory comments about Father in the presence of the minor child … seems to have made little impact on the child.”  Therefore, Father contends Mother’s behavior, in addition to her being held in contempt, unquestionably causes conflict between the parties, and that this factor should have been weighed heavily in Father’s favor.

The Court felt in light of the evidence that many of the weight determinations regarding some of the factors, as noted above, are unreasonable. Moreover, one of the most troubling facets of this case is the Court’s conclusion that Mother should be awarded primary physical custody, despite its recognition of her anger issues. Also, this ruling reduces Father’s custody time exponentially from what it was under the prior order and is unreasonable under the circumstances of this case.

The Court concluded that because the Court’s determinations as to a number of the individual factors are unreasonable, its custody order cannot remain in place. The Court vacated the custody order on appeal and direct that upon remand the prior order of shared physical custody be re-imposed, thus, allowing for the 50-50 split of custody time. The appellate Court substituted its judgment for that of the trial Court and decided the case on the merits. The Court remanded the trial Court is to consider Father’s request to modify the re-imposed custody order to allow any responsible adult to retrieve or accept custody of the Child on behalf of Father for his periods of custody. The Court remanded the case back to the trial Court for a reweighing of evidence in the matter.

The takeaway here is that the appellate Court can reweigh evidence if it disagrees with the trial Court.  This is particularly true when the trial Court decides to ignore contradictory evidence. 

Much of the above is paraphrased from M.J.N. Supra.

Mental health can have a direct effect on child custody decisions.  Generally, individuals can have mental health issues and have them be for the most part irrelevant to custody determinations but the key issue is whether the parent gets the treatment they need to maintain stability for their child.

In E.E.H. v. C.D.H., 2017 Pa. Super. Unpub. LEXIS 3044 (2017), the Court heard multiple days of testimony and analyzed each of statutory factors under Section 5328(a); based on testimony and evidence presented, court found Father is unable at present time to form nurturing relationship with Child or care for Child’s emotional needs; more troubling to court was extent and nature of Father’s mental health; Father’s psychologist conceded Father’s personality disorder poses danger to Child’s emotional wellbeing, Child should be older and more mature before relating with Father; (2) custody order permits Father to send cards and gifts to Child; but court awarded Mother sole physical of custody of Child because Father suffers from personality disorder; any contact between Father and Child would burden Child significantly given her age, emotional state, and immaturity; both psychologists testified that even supervised custody would be detrimental to Child at this time; court’s order allowed for reevaluation after Child’s twelfth [*6]  birthday, to determine if she can reunify with Father).

When an individual is so mentally disturbed that it effects behavior and parenting, the Court will act to protect the child.  The bottom line here is that mental illness can be meaningless if it is treated and does not affect the parent’s behavior toward the child.  However, this is judged on a continuum – with the more serious the illness and the more dangerous the behavior, the more likely the Court will act to reduce custody or supervise custody of the child.