Transfer of Custody

Depending on the state, custody transfer is usually a temporary arrangement involving transfer of legal and/or physical custody from the parents and may occur voluntarily or involuntarily.

Voluntary Transfer of Custody

Under voluntary transfer of custody, parents retain legal rights but voluntarily request the assistance of state agencies when a child is unable to function at home. The parents sign over physical custody for placement of the child in an appropriate setting.

Involuntary Transfer of Custody

Child protective services agencies can file a petition with the court for involuntary transfer of custody if the parents are found to be unfit, unwilling, or unable to competently manage their child's medical care. This transfer occurs when evidence shows that the child is at risk of significant harm as a result of the parents' behavior. In some instances, the child may remain within the physical custody of his or her parents while all legal decisions are made by court-appointed persons (e.g., guardians ad litem), state protective agencies, or the court itself. If the child is at ongoing risk of harm while living with the parents, the child is removed from the home and placed in the physical care of extended family members, foster parents, or state residential facilities. This arrangement is usually temporary, with the goal of reunification after treatment if possible.

The mere presence of parental psychopathology, such as depression, bipolar disorder, or alcohol abuse, does not automatically result in loss of custody unless evidence shows that a child is at significant risk of harm as a result of a parent's illness. Similarly, depending on the severity of cognitive limitations, parents with dementia or mental retardation may be adequate parents if their children have no special needs. When parents with cognitive impairments have a child with complex health issues and are unable to provide sufficient care despite external supports, a sufficient basis for transfer of custody may exist. On the other hand, parents who are cognitively competent and high functioning may be found unfit in certain situations (e.g., if they have a child with an eating disorder and contribute to their child's deterioration by forming an alliance with the illness, resisting treatment recommendations, and pulling their child out of treatment facilities).

Children can be placed in temporary foster care or other substitute care to give parents the opportunity to correct issues (e.g., mental health problems such as psychosis, mood disorders, or substance abuse) that are interfering with their ability to provide appropriate medical treatment for their children. Longstanding character pathology and cases such as Munchausen by proxy may be less amenable to immediate treatment. Children who are removed from their parents may experience the separation as unexpected and traumatic, because removal frequently occurs without preparation or adequate explanation to the child. Placement may disrupt the child's social support network and entail a change in schools. The consultant may be asked to assist in custody or placement evaluations and to make recommendations regarding the mental health needs of children placed in foster care. In making these decisions, the consultant should consider whether foster children are at greater risk for maltreatment and physical abuse than the general population. Despite the detriments of foster care and out-of-home placement, these situations may be necessary to lessen the likelihood of reinjury by parents or legal guardians.

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