Simple (ha!) depression/anxiety and medication for that should not have any bearing on a custody hearing, especially if she’s under treatment. It would be far more likely that were she NOT under treatment and couldn’t get her butt off the couch to get the child to school that he could use it against her.
First of all, there’s legal custody and physical custody. The default these days is joint legal custody - meaning each parent has equal input into things like choice of schools, medical treatment, church attendance and extra curricular activities, travel or moving far away from the other parent, etc. You have to be a real shitstain on humanity’s arse to have legal custody taken away.
There’s a very wide range of physical custody arrangements these days. Most of the time, this is also called “joint custody”, even if they’re with one parent more than the other. If the parents are able to come to some sort of agreement and write it up and sign it together (called a Joint Parenting Agreement), and they take it to a notary and sign it and then one or both of them shows it to a judge, it’s almost always rubber stamp approved with little or no changes made by the judge. It’s in the kid’s best interest to have these sorts of decisions voluntary made by the parents working together, and courts know that. They don’t *care *if it’s “even steven” in terms of time with each parent - that’s often not a realistic goal. What they care about is that the kids are able to form some sort of filial relationship with both their folks.
There are tons of websites out there with suggestions for physical custody arrangements. When I was a kid, I lived with my mom in the town I went to school in. I spent some time in the summer vacation with my dad - beginning with one week when I was a six year old, and adding on a week each year until I was there for 6 or 8 weeks of summer. I spent a week of my two week Christmas break there. This was because he lived in New Jersey and Mom lived in Illinois - weekend visitation wasn’t an option.
My own ex and I have tried several different arrangements. What worked when she was in preschool didn’t work in kindergarten, and what worked in kindergarten didn’t work in first grade. We live about a mile away from each other, and we are very flexible and focused on what she needs, and willing to adapt with little notice, which helps. We’ve done it where he drops her off and school and I pick her up and spend time with her in the afternoon and return her to him before or after dinner. That worked very well in preschool, but got difficult when homework started in kindergarten. We did a week with him, a week with me. That worked well for much of first grade, but then 7 days away from one of us got to be too stressful for her, as she missed the one she wasn’t with. Now we’re on a 5-5-2-2 schedule. 5 days with him, 5 with me, 2 with him, 2 with me. This means we alternate weekends, which is wonderful, and she’s never more than a few days away from seeing whomever she’s missing.
Be creative, is my point. And be compassionate - I wouldn’t send a 6 and 7 year old to stay with a man they hardly know for a month right off the bat, even if they call him “Dad” (unless, of course, they want to.)
But, in this day and age, unless she’s neglecting or abusing the kids because of her depression, I would be absolutely floored if a judge made it an issue, even assuming he somehow found out about it. Our judge certainly didn’t know about or care about my mental health history.
If he’s better off financially, it’s perfectly cromulent to write the Joint Parenting Agreement so that he pays the transportation costs for visitation. My dad had to foot the bill for my plane tickets each year.
And finally…custody and child support are meant to be, and are legally, completely independent things. If she’s got them more than 50% of the time, he should be paying something, even if she decides to put it in a trust fund for later because she doesn’t need it right now. And, conversely, even if he never pays a cent of child support, he’s legally entitled to meaningful parenting time with his children, and a say in their upbringing.
Logistically and realistically, of course, many custodial parents decide that the best way to keep their ex out of the child’s life is to not bring them to court for child support. This is actually the route I took with my son’s father, who was the “promise the kid he’ll visit and never show up” type of idiot. I decided it wasn’t worth my son’s mental health to take his dad to court once again, since it was only when we were at court that Ex decided to phone and make false promises to our son. So if her ex is a waste of oxygen, then yeah, maybe that’s the way to go…but it’s not the most *legal *way to go.