DEALING WITH THE complicated issues surrounding a divorce or child custody case is difficult for any litigant. But those who suffer from mental illness - in any form and to any degree - face the added challenge of overcoming the stigma attached to their illness so they can get a fair day in court.

According to Michael Cohen, executive director of NAMI New Hampshire (formerly the Alliance for the Mentally Ill of NH), an average of 1 to 2 percent of NH residents suffer from some form of mental illness, which translates to between 12,000 and 24,000 people. Precise numbers aren't available because most mental health diagnoses are made by private doctors. Those adults who have availed themselves of the state's public mental health services and are therefore included in statistics number about 9,000, Cohen said.

Like others, people with mental illness work, get married, have children and get divorced. But unless they can afford a private attorney, those with mental illness have much difficulty finding lawyers to represent them in divorce, child custody or other family law matters, according to Donna Woodfin of the Disabilities Rights Center (DRC). "We frequently have people calling us looking for representation in family law issues, often having to do with custody or visitation, but we don't do family law. We don't have the expertise," said Woodfin.

People with mental health issues are most often seeking representation in their fight for child custody or visitation, said Woodfin. In that fight, they often come up against the preconception that mental illness prevents an individual from being a good parent. Statistics show that about 90 percent of parents with mental illness lose custody of their children and many are also denied visitation or are granted very limited visitation.

In these family law matters, the label "mental illness" is "callously invoked" by spouses, ex-spouses, opposing counsel, judges, court personnel and even the person's own attorney, according to the DRC. "People with mental illness get dumped on because they have mental illness. It's one of those things that, if used as a label, gets everyone's attention and the other side uses as a 'headline'," Woodfin said. "Good parenting is no longer the issue."

The daunting task of fighting that preconception is one of the reasons it's difficult to find attorneys to represent low-income, mentally ill clients in family law matters. Add to it the fact that such clients can be more "challenged or challenging" than other clients, Woodfin said, and few attorneys are willing to take on their cases.

"The issues are complicated, the clients tend to be difficult, there is no money involved - it's hard to ask attorneys to give of their time to take Pro Bono cases like these," said Woodfin.

"Attorneys are wary of taking these cases," agreed Breckie Hayes-Snow, one of the supervising attorneys of the Legal Advice and Referral Center (LARC). "Many attorneys are ill-equipped to deal with the mental health issues involved. Sadly, the diagnosis often runs the case."

To help mental health consumers who cannot afford private attorneys, the Disabilities Rights Center refers them "anywhere we can," particularly to LARC, which, among other services, screens clients for eligibility for the NHBA's Pro Bono program. Those who do not qualify for a Pro Bono or Reduced Fee attorney (or if such an attorney can't be found to take the case) often come back to LARC for advice in representing themselves pro se.

According to Hayes-Snow, a "fairly substantial percentage" of the clients her organization speaks to are dealing with some kind of mental health issue. Many are trying to protect their parental rights and are looking for legal representation to help them do so.

Hayes-Snow said that the Bar's Pro Bono program "carries the great weight of the legal needs of this client population in family law." One of Pro Bono's priorities is helping people find representation who can't represent themselves and who have the most at stake, such as custody or visitation of their children, according to Virginia A. Martin, the NH Bar's associate executive director for Legal Services. But because of the many challenges of representing clients with mental illness in family law matters and the limited resources currently available to attorneys to fight that battle, the needs are still great.

"At any time, the Pro Bono Program has a number of clients with mental illness in critical need of legal representation. Their cases sometimes present significant challenges for the staff and attorney volunteers given limited program resources," said Martin.

The result of this inadequate system for individuals with mental illness dealing with family law matters, according to the DRC, is that they almost always lose child custody, despite lack of evidence of poor parenting; they are often severely disadvantaged in court proceedings because they can't afford or find an attorney to represent them and are forced to represent themselves; their mental illness is almost always used against them by an ex-spouse in custody disputes; and they often go years without seeing their children.

When the Disabilities Rights Center held a Family Law Forum in November 1999, co-sponsored by the Dept. of Health and Human Services' Division of Behavioral Health, a panel of mental health consumers illustrated these problems. They spoke of stigma, lack of choices, lack of good legal representation, lack of community support and more. Representatives of many of the state's legal and social services organizations attended the forum.

Several attendees of the forum continued to meet to discuss the issues and how to address them. The group evolved into what is now the Coalition for Family Law and Mental Health. On behalf of the coalition, the DRC submitted grants to several organizations to fund the first year of the group, including hiring a part-time director. The coalition received a total of $39,000 in grant funding from the NH Bar Foundation, NH Charitable Foundation, the Division of Behavioral Health and the Division of Children and Youth Services.

In addition to the DRC and Division of Behavioral Health, others involved in the coalition include: peer support representatives from five regions; mental health consumers; the NH Bar's Legal Services program and Family Law Section; NAMI NH; LARC; New Hampshire Children's Alliance; Child and Family Services of NH; Institute on Disability/UNH; Division of Children, Youth and Families; Dartmouth Psychiatric Research; and private attorneys with family law practices.

According to the DRC, the purpose of the coalition is twofold: to increase the availability of attorneys for individuals with mental illness who have family law issues and to reform the family court system in NH for those individuals and their families. The group says it hopes to "level the playing field" for mental health consumers in family law matters.

The Coalition for Family Law and Mental Health is in the process of finding a director to lead its efforts. Woodfin said that although the group has not yet developed a plan of attack for how to meet its objectives, increased education and training will likely be key elements. Through education and training programs, the group hopes to change views about mental illness and parenting - to show that being mentally ill doesn't automatically preclude an individual from being a good parent. By doing so, she said, hopefully more attorneys would be willing to take family law cases involving mentally ill clients, judges would be more willing to listen to the facts of a case without the filter of the mental illness stigma, and mental health consumers would get a fair day in court.

The other crucial piece of the puzzle is creating a support system for lawyers to turn to when dealing with clients with mental illness - what Woodfin calls resource compilation. By making available resources like peer support for the client, parenting assessments, a library of materials related to mental illness and sources for expert testimony, the coalition hopes to take the stumbling blocks out of the way for attorneys. "If the client is really supported outside of the legal issues and resources are available to help with representation, the task of representing an individual with mental illness becomes less daunting," said Woodfin.

"A lot of attorneys feel a large part of the problem is lack of resources. They need a support structure to take care of the non-legal, social work aspect of these cases," she said.

"We definitely need more services, an integration of services, so that Pro Bono attorneys know there is a peer support group, case worker in place or someone else they can call," agreed Hayes-Snow. "That way the attorney doesn't feel the burden of being the support person."

Martin and Hayes-Snow agree that education, training and resource coordination are needed to increase representation of mentally ill clients in family law matters.

"It's like a chain. You start by educating private attorneys about mental illness so they can get past the assumption that an individual's ability to parent is dictated by mental illness," said Hayes-Snow. "Then you educate them about the resources that are available to help them meet the client's various needs. They can then start educating the court. Judges learn a lot through attorneys," she said.

Woodfin hopes that the coalition's efforts will lead to an eventual reformation of the NH family court system to one that is friendlier, less stigma-ridden and more understanding for mental health consumers. She also hopes that the project will meet its goal of increasing representation for the mentally ill in family law matters. "There is huge potential for great representation to happen through the Pro Bono program. We know what needs to be in place and hope we'll get the support to see it come to fruition," said Woodfin.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer