It is one of the occupational hazards of being a New York Divorce Attorney. Sometimes, you have a client who is accused of being a psycho by his or her spouse and you are put to the task of proving that this is a total, one hundred percent prevarication by a vindictive spouse who is trying to win custody at any cost and who effectively is trying to character assassinate your client who is the sanest, most mentally fit individual you and the Court has ever known – this keeps you up nights! – only to find, of course, as you wake up one day after your sixteenth fight with said client whereby the client has accused you of a bunch of truly insane misdeeds to realize that, you know what? Maybe it’s true! Maybe the spouse was telling the truth! Maybe I’m on the wrong side! Maybe my client is psycho!!! 🙂
No. Let me stop. This is not funny at all. None of my clients are psycho. And being accused of being “crazy” by your spouse when custody is at stake can be very dangerous, painful and stressful and costly. And for some reason, it almost seems that that happens to women more than to men. I wonder why?
It is painful to be accused of being a psycho when it is a bald faced lie and it can cost thousands in legal fees to disprove, not to mention untold stress and a tarnished reputation not only in the courts but also, possibly, in your community. I mean, sure, your records are sealed off from the prying eyes of the public, but anyone can sit in the courtroom and hear this stuff. I am willing to bet that at some point or another, someone could have lost a job or something due to the stuff that came out in their divorce. That’s a problem.
Oh, by the way, before I go on, let me just say this: I am going to be very, very serious on this blog from now on. I think I have, on occasion been very flippant and very almost irreverent in some of the things I say on here, and you know what? People are actually reading this stuff. They are! Shocking, but true. And so I have to be more careful about what I say and how much I divulge and just the opinions I express in general. I really do. Plus, it is only right and professional that I take myself more seriously on this blog. It is a platform for a lot of attorneys, this blogging stuff. I personally see it as just a form of recreation, a place I unwind and crack myself up with my zany little one liners. But I think that is short sighted and I really need to start reeling myself in and be a bit more serious about this even though it has always been extremely difficult for me to be serious when I write. Something takes over me when I write. It’s like, things I wouldn’t dare say in person, I easily write…
Okay. So here you are, waging a custody battle or having a custody battle waged against you by a soon to be ex who accuses you of being as crazy as “Five Shilling Dumpling” the guy up the block who gave his son laxatives even though the boy was not constipated. No, this really happened. I’m totally serious. But Five Shilling Dumpling never got divorced from his wife, so it never really came up as an issue in custody.
But there is a case in New York where a mother was accused of doing the same thing. I think the cite is……hang on. Let me pull out my reference book……ok…… The case is In Re Jessica Z., 135 Misc. 2d 520, 515 NYS 2d 370 (Fam. Ct. Westchester County, 1987). The mother in that case had this affliction called Munchausen Syndrome by Proxy (“MSP”) and basically, when a parent has MSP, they “fabricate or induce illness to their child.” And so in Jessica, the mother had “caused serious illness to her infant child by forcing the child to ingest laxatives.” This is obviously a crazy person, right? (Oops, that may not be politically correct so I’m going to try that again.) This is obviously someone with some mental frailties, right? But guess what? Even though [the father?] moved to get custody on the basis that the mother was, you know, mentally unfit? [He?] lost. The mother won the case and the judge awarded the child to the mother. The court opined, “removal to a foster family would be extremely traumatic for the child given the surgeries and invasive testing he had already undergone.”
Ok. So the point of all that is to say that spouses accuse each other of mental illness (and sometimes of being outright psychos) all the time. And in New York, that is going to mean that psychological/psychiatric evaluations are likely to be ordered by the court. In the case Rosenblitt v. Rosenblitt, 107 Ad 2d 292, the court stated “it is generally accepted that the parties in a contested custody proceeding place their physical and mental conditions in issue.” And once the mental capacities of a party are placed in controvery, “any other party may serve notice and direct that the former submit to a physical or mental examination by a designated physician.”
Obviously, sometimes, these concerns by the other party are legitimate. There may be a history of mental illness: depression, anorexia, schizophrenia, suicidal threats and tendencies, giving the kids laxatives when they are not constipated, things like that. And so, in a case like that, it is obviously proper for the court and the other side to evaluate the party to make sure that it is safe for the children to be in that person’s custody, or to have unsupervised visitation.
But I have to say sometimes, this branding of the spouse as a “psycho” is nothing by a harassment ploy to gain the upper hand in a custody battle. And it is a foul ball, it really is. It sets the tone for the whole divorce/custody and it weakens the position of the person accused considerably.
But as I said before, when you fight over custody, the law pretty much looks askance at your right to not be subjected to psychiatric review. You pretty much have to do it if one party alleges that the other is unfit, crazy, psychotic or in any way depressed, anorexic, schizophrenic, or suffer from any pathology. And it doesn’t seem to matter if that was a thing buried deep in the closets of your past. A custody battle can dig that stuff up and next thing you know, the court is ordering all these psychiatric evaluations, and depending on what those bad boys/gals say (the psychiatric evaluators), you may or may not lose custody of your kids.
What can you do to protect yourself? Get good expert witnesses/mental health professionals of your own to cross examine the court appointed evaluators, for one thing. And if need be, turn the tables on your spouse and get them subjected to the same tests as well. And when all else fails, pray.
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