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A Change in the Mental Health of a Parent May Be Sufficient Grounds for a Custody Modification – Farner v. Farner, 152 A.D.3d 1212 (N.Y. App. Div. 2017)


In Farner v. Farner, the Appellate Division considered whether a change in the mental health of the custodial mother was sufficient grounds for a custody modification.

Upon divorcing, the mother and father created a parenting agreement that was incorporated into their divorce decree.  According to the agreement, the mother was designated the primary residential parent.  She lived in Georgia. The father, who lived in New York, was awarded visitation.  Sometime later, the father became concerned about the well-being of his child in the care of the mother and her live-in boyfriend and petitioned the court for a modification to the custody and visitation arrangement.

In New York, custody arrangements are meant to be stable. The court will not alter an arrangement on a whim, as it is important for the child’s living arrangements and relationship with his or her parents to be stable and consistent.  However, the court does recognize that circumstances do sometimes change from when a custody agreement was established.  If there is a substantial change in circumstances, upon petition, the court will consider whether a change to the custody or visitation arrangement is in the best interests of the child.  One reason that the court will change a custody arrangement is if a change in the physical or mental health of a parent negatively impacts the parent’s ability to care for the child.

In Farner v. Farner, the father’s concern for the well-being of the child was based on information that he received that the mother was using drugs, was facing criminal prosecution for a drug offense, was investigated by Georgia’s Division of Children and Family Services (DCFS) Farner v. Farner, was hospitalized for at least 4 days for drug-related psychosis, and was diagnosed with bipolar disorder.  In addition, the child reported that the mother’s live-in boyfriend punished the child with a belt.

The lower court dismissed the father’s petition concluding that there were no changed circumstances.  The court focused only on the investigation by DCFS related to the mother’s alleged drug use.  Although DCFS had indeed investigated the mother for possible drug use, the mother passed the drug test and the case was closed.  Based on the DCFS’s investigation not finding a problem with the mother, the court dismissed the father’s petition.  The Appellate Division reversed the lower court’s decision, stating that the court should have expanded its inquiry.  While the mother did pass the drug test, arguably by the time the mother was tested for drugs, they were out of her system.  Also, the court should have been concerned about the mother’s mental health.  There was conflicting testimony from the mother’s boyfriend as to how long the mother was hospitalized and whether it was for drug induced psychosis or for another reason.  It was confirmed that the mother was diagnosed with bipolar disorder.

The court concluded that the fact that there are questions as to whether the mother’s mental condition had been properly treated and managed, the father did indeed allege a change in circumstances such that a full evidentiary hearing is warranted to determine if a change in custody is in the best interests of the child.  The mental health of a parent has a bearing on his or her ability to care for a child.

The fact that the court ordered a full evidentiary hearing does not mean that the court will ultimately make a change in the custody and visitation arrangement.  The court must be convinced by testimony submitted by the mother and father that the change in the mother’s mental health, her use of drugs, or other factors are such that a change in custody is in the best interests of the child.

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