Parental Brain Injuries and Child Custody

Recent Cases in Law and Neuroscience, Curated by the Center for Law, Brain & Behavior and the Shen Neurolaw Lab with support from the Dana Foundation

Center for Law, Brain & Behavior
3 min readApr 18, 2022

In 2021, expert testimony about parents’ brain injuries was used in cases involving child neglect to argue that a parent was unfit to care for their children.

In cases involving alleged child abuse, evidence of parental brain injuries contributed to courts terminating parental rights. In a Virginia case, a father had his parental rights terminated after the Department of Health and Human Resources filed an abuse and neglect petition. The father admitted that he had not seen his child in many years, but blamed his mother-in-law for his absence, stating that she prevented him from contacting the child because of his prior traumatic brain injury and history of drug abuse before the post traumatic brain injury and during incarceration. The father’s neuropsychological evaluation showed that the father suffered from substantial neurocognitive limitations, including an inability to complete simple tasks, complex problem solving, and maintaining focus. At a final dispositional hearing, the psychologist who conducted the father’s neuropsychological evaluation testified that the father had reached his maximum medical improvement with respect to his traumatic brain injury and that the father believed he was functioning at a higher level than his actual level of functioning. The neuropsychologist further testified that the father lacked insight as to his limitations and had poor decision making, as shown by his prior arrests, incarceration, and substance abuse. The lower court found that the father had multiple opportunities to correct his behavior, including substance abuse, but did not, so there was no reasonable likelihood of correcting the abuse or neglect in the future and the court terminated the father’s parental rights. In re R.W.

Similarly, in an Arizona case, the juvenile court considered whether a mother could continue to be entrusted with raising her three kids after a traumatic brain injury. The mother had previously been diagnosed with adjustment disorder with anxiety and depressed mood, attention deficit hyperactivity disorder, and psychosis, and a subsequent car accident later left her with a traumatic brain injury that further diminished her cognitive and reasoning skills. During an investigation, the Department of Child Safety (“DCS”) found the mother confused, unresponsive, and mentally incompetent to protect the children from the father’s physical and sexual abuse, so the DCS removed all three children from the home. The court agreed that the mother’s mental health and cognitive disability prevented her from adequately parenting, noting that her behavior in court suggested unmanaged mental health issues and diminished reasoning ability, so the mother’s testimony of her ability to care for her children was unreliable. Nikolette R.

Citations: In re R.W., 2021 WL 2556628; Nikolette R. v. Dep’t of Child Safety, 2021 WL 3207329; Espe v. Castellaw, 2021 WL 2021137.

Keywords: Arizona, Virginia, child custody, traumatic brain injury (TBI)

This post is the 118th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.