Parenting is a personal journey for each individual. Generally, courts will not interfere with the parent’s rights unless there is a serious problem that endangers a child’s physical or mental health. Courts recognize that some individuals may be more fit for parenting than other individuals. The court will not penalize parents for being imperfect.
The core principle the judges consider in every case is the child’s best interests standard. However, that consideration is weighed against parental rights. A judge is not likely to deny custody or revoke parental rights if a parent is trying to do their best. However, if a parent’s actions could place a child in danger or cause them emotional or mental harm, the court might rule that the parent is unfit. Being an unfit parent means that you are incapable of caring for your child and are unable to ensure your child’s welfare.
What Factors Judges Use to Determine If a Mother is Unfit?
When deciding whether a parent is unfit to have custody of a child, a judge reviews the following factors and circumstances:
- The safety, health, and welfare of the child;
- Evidence of a history of abuse or violence against the child, another child, the child’s other parent, or another romantic partner;
- A parent’s history of substance abuse, including drugs and alcohol and;
- The amount and nature of contact between the child and each parent.
Some family codes across the state require judges to consider the above factors. It is in their discretion to weigh all relevant factors to decide whether a parent is fit to have custody. For instance, the judge may order a child custody evaluation to assist in their decision. Factors that the evaluator may examine when preparing a report and recommendation for the court include:
- Whether the parent sets age-appropriate restrictions for activities, television, bedtimes, etc;
- How well a parent handles conflict with the child and between the child and other individuals;
- If a parent can understand and provide for a child’s needs;
- The parent’s level of involvement in the child’s life;
- A child’s feelings toward each parent;
- Whether a parent has a history of mental illness or instability;
- History of neglect or abandonment;
- Whether the parent obtains medical and dental care for the child;
- A parent’s ability to provide a safe, clean home, including adequate food and clothing for the child and;
- Allegations of parental alienation by either parent.
It is important to note that neither the court nor the evaluator has a presumption or preference for either parent. As stated earlier, custody is often granted jointly to both parents according to the child’s best interest. The court and the child custody evaluator objectively review the information and determine the child’s best interest based on a parent’s fitness to care for the child.
What is the Evidence Used to Prove is Unfit?
Proving a parent is unfit can be a challenging task. A judge will not simply terminate a parent’s legal rights based on the allegations of the other parent. The parent alleging unfitness must have relevant evidence to substantiate the allegations. A court-ordered child custody evaluation may be crucial in these scenarios. The evaluator is known to be an independent investigator; therefore any evidence obtained by the evaluator may be viewed with great authority by the court.
Other evidence that could be used to prove that a parent is unfit might include:
- Testimony from counselors, therapists, teachers, coaches, and other people who are familiar with specific instances in which the parent displayed unfit behavior;
- School and medical records;
- Police reports detailing domestic violence;
- Photographs and videos of the parent’s home;
- Details of home visits and inspections and;
- Criminal records.
The evidence proving a parent is unfit varies on the specific allegations made against the parent. A child custody lawyer with experience in handling these types of custody cases will guide the parent through the process of gathering evidence and presenting a compelling case to the judge.
A judge may discover that the allegations against the parent are unfounded. If the judge finds that a parent is unfit, the judge may order sole custody to the other parent. Depending on the allegations, the court may order supervised or restricted visitation. In rare cases, the court could involuntarily terminate the parental rights of an unfit parent after a careful evaluation of all the circumstances.
What Is the Best Interests of the Child Standard?
Regardless of a state’s particular definition, addressing the issue of parental fitness is resolved by figuring out the best interests of the child. This is the standard for all decisions involving a child’s well-being.
The court is required to intervene and protect a child from an unfit parent. It has the authority to deny a parent visitation rights if the parent is an unfit person or that visiting with the parent is not considered to be in the child’s best interests.
How Can a Mother Lose Custody of Her Child?
The court will rely on several aspects to determine whether a mother should be prevented from seeking or obtaining custody. If there is any history of child abuse, the court will look unfavorably at a mother that has a history of abusing her child. Child abuse charges are harder to overcome in child custody proceedings. If the court has sufficient evidence supporting such charges, the mother will, at most, only obtain occasional visitation rights.
If the court detects that there is a history of domestic violence, including physical and verbal abuse, both against the child or the father, it can be detrimental to the mother’s case in custody proceedings. It focuses on the mother’s ability to ensure the child’s safety. The court will most likely grant sole custody to the father and only grant the mother visitation rights under strict monitoring.
Furthermore, there is a charge for emotional abuse but this is more difficult to prove in court, but it is just as effective in terminating the mother’s custodial rights. Some examples of emotional abuse are the following:
- The mother constantly harasses or belittles her child;
- Parental alienation, or trying to manipulate the child into harboring negative feelings about their father and;
- Interfering with visitation rights by preventing the father from seeing the child or excluding the child.
When a mother neglects to provide for her child in certain crucial areas such as their basic needs, access to healthcare, or access to education, they might lose their custodial rights.
Additionally, there are psychiatric concerns the courts examine and the court may consider the mother a risk to the child if they are suffering from an aggressive or unpredictable mental health condition. If this is proven through prescriptions or proof of therapy that the mother is mentally unstable to parent her child, the court may remove custody.
Lastly, if the mother is struggling with addiction to drugs or alcohol this may also prevent her from getting custodial rights, especially if the court determines that she is unreliable or presents a clear danger to her child.
When Do I Need To Contact a Lawyer?
If you have evidence that the mother is not fit to take care of the child, there are several procedures to determine and consider before moving forward. It may be useful to reach out to a local child custody attorney to guide you through the process. An attorney can provide you with legal advice, guidance, and representation for your case.
In most cases, the court prefers to award custody cases. However, that consideration is weighed against parental rights. A judge is not likely to deny custody or revoke parental rights if a parent is trying their best.
However, if a parent’s conduct could place a child in danger or cause them emotional or mental harm, the court might find that the parent is unfit. Being an unfit parent means that you are incapable of caring for your child and ensuring your child’s welfare.
Factors Judges Use to Determine if a Parent is Unfit
Although Family Code 3011 requires judges to consider the above factors, they may consider all relevant factors to decide whether a parent is fit to have custody. For example, the judge may order a 730 child custody evaluation to assist in their decision.
Things that the evaluator may consider when preparing a report and recommendation for the court include:
- Whether the parent sets age-appropriate restrictions for activities, television, bedtimes, etc.
- How well a parent handles conflict with the child and between the child and other individuals
- If a parent can understand and provide for a child’s needs
- The parent’s level of involvement in the child’s life
- A child’s feelings toward each parent
- Whether a parent has a history of mental illness or instability
- History of neglect or abandonment
- Whether the parent obtains medical and dental care for the child
- A parent’s ability to provide a safe, clean home, including adequate food and clothing for the child
- Allegations of parental alienation by either parent
Neither the court nor the evaluator has a presumption or preference for either parent. As stated above, custody is often granted jointly to both parents according to the child’s best interest. The court and the child custody evaluator objectively review the information and determine the child’s best interest based on a parent’s fitness to care for the child.
Evidence Used to Prove a Parent is Unfit
Proving a parent is unfit can be difficult. A judge is not likely to strip a parent’s legal rights based on the allegations of the other parent. The parent alleging unfitness must have evidence to substantiate the allegations.
A court-ordered child custody evaluation can be extremely helpful. The evaluator is an independent investigator, so any evidence obtained by the evaluator may be viewed with great authority by the court.
Other evidence that could be used to prove that a parent is unfit might include:
- Testimony from counselors, therapists, teachers, coaches, and other people who are familiar with specific instances in which the parent displayed unfit behavior
- School and medical records
- Police reports detailing domestic violence
- Photographs and videos of the parent’s home
- Details of home visits and inspections
- Criminal records
The evidence proving a parent is unfit depends on the specific allegations made against the parent. A child custody lawyer with experience handling these types of custody cases will guide the parent through the process of gathering evidence and presenting a compelling case to the judge.
A judge may find that the allegations against the parent are unfounded.
If the judge finds that a parent is unfit, the judge may order sole custody to the other parent. Depending on the allegations, the court could order supervised or restricted visitation. In extreme cases, the court could involuntarily terminate the parental rights of an unfit parent.
Judges see parental fitness as an essential part of a child custody decision. Deciding what is in the best interest of the child factors in looking at the standing of the parents. If one of the parents is more stable than the other, judges can choose to award sole custody (sole legal decision making) to the more stable parent. And as a result, parental suitability is often instrumentally used in custody battles. Each state has its own set of rules as regards to what makes an unfit parent. Despite that, there are some generally accepted grounds that a parent can use to prove that the other parent is unfit. These include neglect, mental illness, abuse, drug or alcohol abuse and incarceration.
How Do I Find a Father’s Rights Attorney Near Me?
If you are in the Scottsdale area, our Father’s Rights Attorneys can help! Our Child Custody lawyers will address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.
1. Research the Criteria for Your State
Research your state’s statutes to find the criteria to deem a parent unfit. Usually, these statutes are found in the family or juvenile codes. Visit your states court website or other online service providers to find the requirements for your state.
2. Collect Evidence to Prove the Mother is Unfit
Collect evidence proving that the other parent is unfit. Evidence that can be submitted in court can include pictures, video and/ or audio files of verbal physical or abuse, recorded medical files that document injuries, the parent’s criminal history and direct communication between the petitioner and the other parent. The evidence needs to be strong and impartial. Courts are inclined to protect the parent-child relationship and will not rule a parent unfit without substantial and hard evidence.
3. Schedule an Appointment with Medical and Mental Health Professionals
Schedule an appointment with medical and mental health professionals for an evaluation of your child. Depending upon any current custody (legal decision making) requirements, this step may need to wait until there is a court-ordered evaluation. In certain cases, the consent of each parent may be necessary for such evaluations.
4. Locate and Download your Appropriate State Forms
Locate and download the appropriate forms from your states court website or another online document provider. State child custody laws have strict rules in regard to what court holds jurisdiction over such matters. You will need either a Motion to Modify Child Custody order or a Petition for Custody form, depending on if there is already an order currently in place or not.
5. Fill Out the Forms
Fill out and complete the forms. Enter the information that includes parental contact information, any related court cases, the child’s name, birth date, and current living situation and the reason for petition or modification. Include the grounds for their unfitness and the evidence collected to back up your claim. Sign the form and make sure to make a copy for your records.
6. File the Forms with the Appropriate Court
File the forms and any attachments with the correct court. Review your state regulations to find out whether this will be a family or juvenile court in the county where the child lives or some other type of requirement. Jurisdiction over child custody cases will vary from state to state. If it is a petition for revision, file the papers where they were originally filed. The clerk will then assign a case number.
7. Have the Documents Served to the Other Parent
Have the documents personally served on the other parent by a licensed process server. Go over the service of process rules for the appropriate court. Service rules differ by their jurisdiction, but typically requires in-person service by a law enforcement agency, a private process server or an adult over 18 and that is impartial to the suit. Provide proof of services form for the individual to complete. Deliver the proof of service form back to the court clerk.
8. Go to the Hearing and Explain Why you Requested the Hearing
Go to the hearing. Explain why you are requesting the hearing and provide an explanation for the petition. Make sure to be concise and clear. Produce original copies of the evidence proving your unfit parent claim. Bring the original copies of the evidence you collected against the parent that backs up your claim. This will include any witness testimony, medical or school records validating your claim that the parent is unfit and that it’s not in the child’s best interest to remain in her care. After hearing both sides, the court might rule or order a child custody evaluation. The evaluation will include a comprehensive review of both parents and the child. The evaluator is an impartial party who will evaluate each home environment, interview friends and family and schedule psychological testing for everyone involved.
Child custody is one of the most contentious issues in a divorce. In most cases, both parents would want to get custody of their child. However, when determining custody, the court will always base their decision on the child’s best interests.
Even when one parent is granted full custody, the other parent will most likely be given enough time to spend with their child as Virginia law requires the court to make sure that the child gets frequent and regular contact with both parents.
However, in certain cases, the court will limit or reduce the interaction between a parent and child. This also happens when one party is deemed an unfit parent.
What is an Unfit Parent?
An unfit parent is one who is unable to provide proper care, guidance, and support to their child. They most likely won’t be granted custody by the court if the case is still active. If the unfit parent already has custody, they’re likely to lose it after the court obtains sufficient evidence that living with that parent is putting the child in harm’s way.
Proving that a mother is an unfit parent can be tough on both the child and the father. Sometimes, Child Welfare Services may need to intervene, especially if there are allegations of abuse or if there’s an ongoing investigation against the mother.
If you believe the other parent of your child is unfit, consult a child custody lawyer to understand your rights and determine the best course of action.
How Can a Mother Lose Custody of Her Child in Virginia?
The court will rely on several factors to determine whether a mother should be prevented from seeking or obtaining custody. These include the following:
- History of Child Abuse
The court will look unfavorably on a mother that has a history of abusing her child. Child abuse charges are difficult to overcome in child custody proceedings. If the court has sufficient evidence supporting such charges, the mother will, at most, only get occasional visitation rights.
- History of Domestic Violence
Physical abuse, both against the child or the father, can also be detrimental to the mother’s case in custody proceedings. It calls into question the mother’s ability to ensure the child’s safety. The court will most likely grant sole custody to the father, and only grant the mother visitation rights under strict monitoring.
- Emotional Abuse
This charge is a lot more difficult to prove in court, but it is just as effective in removing the mother’s custodial rights. Some examples of emotional abuse are the following:
- The mother constantly harasses or belittles her child
- Parental alienation, or trying to manipulate the child into having negative feelings about their father
- Preventing the child from seeing their father
- Excluding the father from activities or trips
- Any other actions to sabotage the father’s attempts to see his children
What Evidence do I Need to Prove an Unfit Parent in Virginia?
If a parent is trying to establish that their spouse or ex-spouse is an unfit parent in court, they need to provide evidence to prove their allegations. Some examples of evidence that they can present in court are the following:
- Testimony from witnesses about the parent’s behavior
- Videos of incidents relating to the factors enumerated above
- Physical evidence of abuse or neglect
- Documents or files that support the allegations
It can be challenging to find evidence, but if you think you might have something, it’s worth bringing forward to your lawyer. All evidence must be gathered before a request to change custody is filed.
Hire an Experienced Family Law Attorney Today
If you’re planning to file or in the middle of unfit parent proceedings, you’ll need to make tough choices that can permanently impact your child’s upbringing. You need to have a lawyer by your side who can advise you and make sure that your child’s best interests are protected.
The expert lawyers at Holcomb Law can represent you during the process and help support and prove your position. Contact us now at (757) 656-1000 to schedule a consultation.
It is the job of the judge in your divorce case to determine whether you and your soon-to-be ex-spouse are fit to be parents. Determining whether a parent is fit or not is a critical part of the judge’s role and is the deciding factor on how the divorce decree sets out issues of custody and support. While the laws of every state are different, there are some universal guidelines to follow in order to prove a parent is unfit. Read on below for the common steps in this process.
1. Determine if the parent is unfit.
Before you take any steps to have a court declare the other parent unfit, it is important that you are certain in your belief that the other parent is unfit. It is easy to get wrapped up in the stress of a divorce, but making a false or reckless accusation will do more harm than good. However, if you feel strongly that the other parent is unfit, it is important that you make the court aware.
2. Review the laws of your state.
Every state has a different standard for what constitutes an unfit parent. You need to do your research and keep these standards in mind as you build your argument that the other parent is unfit.
3. Gather evidence.
To prove your case at the hearing, you need evidence. The allegations alone aren’t enough, and the petition that you will file with the court must spell out the reasons the court should declare your ex-spouse unfit. Evidence can include anything that supports your case. It can involve testimony from witnesses regarding your ex-spouse’s behavior. It can also include video of an incident or physical evidence that proves your point. You should gather as much evidence as you can find before you proceed with filing the petition to request a change in custody.
4. Complete and file the necessary paperwork.
You can’t simply ask the judge to change the custody agreement. You must file the legal forms required in your state. The procedure varies by state, and filing the wrong forms or making mistakes on the paperwork could drag this process out. The risk of a technicality costing you is real, which is why seeking divorce help may be in your best interest.
5. Serve the paperwork.
It’s not enough to prepare and file the petition seeking to declare the other parent unfit. Once you have filed the petition, you need to legally provide, or serve, the paperwork to the other parent. They are entitled to have notice of the filing and subsequent hearing in order to give them a chance to defend themselves from your accusations.
6. Present your evidence in court.
All of the work in the previous steps leads up to the hearing. At the hearing, both parties have the chance to address the judge and offer their own evidence. This is when you can put the evidence you gathered to use. Once you have made your case, your ex-spouse has a chance to rebut your claims using similar types of evidence. Depending on the nature of your allegations, the court may require that independent experts evaluate your children before the judge makes a decision.
7. Follow the court’s order.
Once the hearing is over, the judge makes a decision. The judge may announce the decision immediately or you might get it in the mail within a few days. No matter the decision, you must abide by the ruling of the court.
This process may seem complicated, but by following this guide and doing your homework, you can bring your concerns in front of the court. If the court rules in your favor, you will be able to remove your children from a potentially dangerous situation by placing them in your sole custody.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.
Deciding matters related to child custody is rarely easy. However, when one parent is unfit, it can make the custody case much more challenging. Proving that the parent is unfit can result in sole custody for the other parent, which can be in the child’s best interest.
What Does it Mean to Be an Unfit Parent in Florida?
Florida Statute §751.05 states that the court must find that a parent has abandoned, abused, or neglected a child to find that a parent is unfit. A parent may also be found unfit if the parent has a mental illness or substance abuse problem. These issues may be recent, or the person may have a long-standing history of the behavior or condition.
With mental illness and substance abuse, the judge considers all relevant factors to determine if placing the child with the parent would create a potentially harmful situation for the child. The judge could order that the child has limited or supervised visitation with the parent if they award sole custody to the other parent or a guardian.
Factors That Could Result in a Decision of Being Unfit
Abuse and neglect are two of the most common reasons for a parent being found unfit. Abuse can take many forms, including physical, sexual, emotional, and verbal abuse. An abused child may sustain numerous physical injuries, but a child may also sustain emotional and psychological injuries that can impact them for the rest of their lives.
Neglect may also take many different forms. A parent may not provide food, clothing, or adequate shelter for a child. For example, living in an unsafe home might qualify as neglect. If the home is infested with insects or has health hazards, the court could find that the parent is neglecting their child.
However, keeping a dirty home could also result in a judgment as being an unfit parent. A filthy home can result in vermin, black mold, and other health hazards that could cause serious health conditions or injuries.
Parental alienation can also result in being found unfit as a parent. When parents are fit, a child benefits from having both parents play an active role in the child’s life. However, when a parent intentionally alienates a child from the other parent, the child is the one who suffers the most.
The parent guilty of parental alienation can cause a child to suffer emotional distress and mental trauma that causes long-term consequences. A child may suffer from depression, anxiety, and other psychological conditions because of the parental alienation.
Other examples of actions that could result in a finding of unfitness include:
- Substance abuse
- Mental illness
- Failing to take a child to the dentist or doctor
- Not ensuring a child attends school
- Making false allegations of abuse or neglect
- Allegations of domestic violence
The above situations are just a few examples of things that could result in the court finding a parent unfit. If you are concerned about your child being in a dangerous or unhealthy situation, you may want to contact a family law attorney to discuss legal options for seeking sole custody and/or terminating visitation.
How to Prove That a Parent is Unfit
A judge does not deny custody or visitation solely based on your allegations of unfitness. The court requires proof that the other parent is unfit. Your allegations need to be true, accurate, and factual.
You need compelling evidence proving your child’s other parent is unfit.
Evidence could include:
- Testimony from friends, family, teachers, and other people in the child’s life
- Testimony from expert witnesses, including physicians, psychologists, counselors, etc.
- Photographs and videos
- School and medical records
- Details of home visits and inspections
Any evidence related to the parent’s conduct or condition that makes the parent unfit can be introduced at court if it supports your claim.
After a hearing, the judge will determine whether a parent is fit or unfit. The judge will consider all relevant evidence and the best interest of the child. If the judge finds that a parent is unfit, the judge could take several different actions.
A judge could award sole custody to the other parent when a parent is found unfit. Visitation may be limited or supervised. In severe cases, the state could request that the court terminate the parental rights of an unfit parent.
Allegations of fitness are serious. Whether you are bringing the allegations or defending the allegations, having an experienced custody lawyer represent you in court is wise.
To learn more, call our law firm at 407-898-2161 or visit our contact us page to send us an email.
Terminating another parent’s parental responsibilities (Illinois’ term for “custody”) is taken extremely seriously in the Illinois family courts. Without convincing evidence, a court will rarely terminate another parent’s rights entirely. Even if a parent is deemed unfit, it’s more likely they’ll be given extremely limited parental rights – not cut off completely.
If you try and terminate parental rights unfairly, the courts will not take it lightly. No matter how damaged your relationship with your spouse, parental rights can’t be used as a punishment. Even if it’s painful, it’s best for both parents to be involved in their kid’s lives if possible.
Illinois has very strict definitions of what factors constitute an unfit parent,  including:
- Habitual substance abuse problems
- Physical or emotional abuse
- Mental illness or instability
- Putting the children in an unsafe living environment
- Being incarcerated
- Not being interested in the children’s welfare
In any situation where parental rights are involved, courts will prioritize the wellbeing of the kids. If a parent continually puts your children in harm’s way, there may be grounds to alter parental responsibilities.
One thing that is NOT grounds to declare a parent unfit is neglecting child support. If a parent is behind on child support, there are ways to enforce the order and make sure they pay. However, terminating custody is not one of them.
It’s extremely important to note that a court will not accept hearsay or a person’s word alone as proof. The burden of proof is on you, and you will need to present convincing evidence such as:
- Medical documents (injuries, sicknesses related to the home environment, etc.)
- Photographs or videos proving abuse
- Police reports and criminal records
- Relevant e-mail, text message, social media posts, etc.
In any case, what will or won’t be useful for your case is best determined by a family attorney. Proving an unfit parent can be a daunting task. Getting a lawyer involved early is the best way to make sure the situation is handled quickly and efficiently.
How do you prove a parent unfit?
Claiming a parent as unfit in Illinois is not an allegation that’s taken lightly. Doing so without supporting evidence could do much more to hurt your case than help it.
To prove a parent is unfit, the court will need supporting documentation like police reports, criminal records, photographs, medical documents, and other verifiable documentation.
However, just because documentation exists isn’t a guarantee that the court will change the other parent’s rights. The court will always decide whether or not modifying parental responsibilities is in the children’s best interest.
In most cases, a court will always try to keep both parents involved in their kid’s lives.
How do you prove the best interest of the child?
The “best interest of the child” is the word that often comes up in Illinois law. But what does that mean?
Broadly speaking, the best interests of the children are served when their physical, emotional, and mental well-being are being taken care of. If either parent seriously threatens a child’s safety or emotional state, the court may make a change because it’s in the child’s best interest.
This means that your personal feelings about the other spouse’s parenting style, or if they engaged in an adulterous relationship are not likely to be considered. Instead, the court is looking for tangible, hard proof that the other parent’s actions are negatively affecting the child.
Additionally, courts will note whether each parent has been consistently involved in the children’s life.
Illinois family courts presume that having both parents involved in their children’s life is in the children’s best interest. Therefore, they are much more likely to modify parental responsibilities and parenting time (custody and placement) than terminate them altogether.
For Immediate help with your family law case or answering any questions please call (312) 757-8082 now!
Custody and time-sharing are usually one of the most contentious issues in any New Mexico divorce, custody, and timesharing case. While every parent usually wants to maximize their custody and timesharing with their child, there may be legitimate reasons for seeking sole custody of your child. In New Mexico, child custody is always based on the principle that joint custody is in the child‘s best interest, which means that the New Mexico courts tend to prefer that parents share both legal custody and physical custody (also known as timesharing) of their children. However, like most things in family law, this is not set in stone. While not easy to achieve, there are certain important circumstances where sole custody is necessary and may be ordered and enforced by the court. Find out how child custody works from one of Albuquerque’s best child custody attorneys.
How Can I Get Sole Custody in New Mexico?
In New Mexico, family law judges make decisions based on the standard of what is in the best interest of the child. This standard aims to promote a child‘s emotional, mental, and physical wellbeing and development. That means a court will only award sole custody of a child if it advances these goals and determines that such a custody arrangement is in the child’s best interest. Sole custody grants one parent all of the rights and responsibilities of raising the child while taking them away completely to the other parent. Sole custody can be legal, physical, or both. Legal custody entitles a parent to make all major decisions regarding the child‘s life, including education, religion, health care, extracurricular activities, and beyond. Physical custody, or timesharing, is the time a parent is legally entitled to spend with the child.
Courts may award sole custody to one parent if the other parent has been determined to be an unfit parent. Remember, just because you disagree with the other parents’ parenting, dating, or lifestyle choices does not mean they are an unfit parent. The courts will be very reluctant to remove a parent's parental rights so the standard for “unfit” is usually pretty high. Generally, a parent can be found to be unfit if they have a (provable) drug or alcohol addiction or if there are findings of child abuse or neglect. Other factors considered by the court are whether the parent has placed the child in dangerous situations previously or whether the parent has a history of violence or mental instability that would make them a threat to the child or unable to care for them.
That being said, it’s important to note that New Mexico family law courts are starting to move away from awarding sole custody to one parent as there is a recognition of the importance of having a relationship with both parents to a child‘s development. The New Mexico courts generally presume that that joint custody is in the best interests of a child which makes it extremely difficult for one parent to obtain sole custody without the extraordinary circumstances discussed above, (meaning drug or alcohol problems or a finding of abuse or neglect).
In some cases, if one parent is completely unwilling or unable to communicate and cooperate on parenting issues, the court may award sole legal custody to the other parent. However, even in those types of cases, the court usually awards sole legal custody to one parent while awarding joint physical custody, or timesharing, to both parents by granting the non-custodial parent visitation or timesharing with the child. Today, New Mexico family law judges are usually very reluctant to completely sever a parent-child relationship, which is often the result when one parent is awarded sole legal and physical custody that prevents the non-custodial parent from any meaningful involvement in their child‘s life. If a joint custody order is already in place, a court will only replace it with a sole custody order if there has been a material and substantial change to conditions affecting the child‘s welfare that makes joint custody no longer in the best interests of the child.
What Should I Do To Get Sole Custody in New Mexico?
If you already have a joint custody order in place, the court will only replace it with a sole custody order if there has been a material and substantial change to circumstances affecting the child‘s welfare that makes joint custody detrimental to the best interests of the child. However, if you are motivated by anger towards your ex or you’re trying to make custody a bargaining chip in a wider divorce dispute or if you just don’t like the other parent or their new partner, you are probably wasting time and money petitioning the court for sole custody. If your New Mexico custody attorney isn't honest about this, they probably just want your money. Since custody determinations are always made based on the child‘s best interest, this kind of behavior could actually work against you and will likely not earn you any goodwill from the judge in your case. However, if there is a valid reason for requesting sole custody, a court may be inclined to grant it.
If you need help getting sole custody of your child, or if the other parent is trying to get sole custody, you probably need the help of an experienced New Mexico child custody attorney. Our Albuquerque Custody lawyers can help parents determine what form of custody is actually in their and their child‘s best interest and how to best demonstrate that to the court. Call 505-317-4455 or chat with someone now through our online chat function to get the help you need with your New Mexico child custody case now!
Florida law makes it clear that children are a priority. The well-being of children and the best interest of children is the guiding standard in all family law decisions where children are involved. The rights of parents are also an important part of Florida family law. A parent’s rights to raise and care for his or her child is fiercely protected. In some cases, however, a parent acts in such a way that it is clear they are unfit for the role of parent in the life of their child. Determining a parent to be unfit is not a decision Florida courts take lightly, but it is all too often one that needs to be made in order to protect a child from harm.
What Is Deemed As an Unfit Parent
Pursuant to Florida Statute 751.05, a parent may be found unfit if he or she abused, abandoned, or neglected the child. Abuse includes intentionally inflicting mental or physical harm against a child. It may also include intentional acts reasonably expected to cause mental or physical injury. Additionally, a parent may be deemed abusive if he or she actively encouraged someone else to commit an abusive act against the child.
In the alternative, a parent may be found unfit due to child neglect. Neglect occurs when a parent fails to provide the care and supervision needed to support the mental and physical health of the child. A parent or caregiver may also be found neglectful if he or she failed to take reasonable steps to protect a child from abuse, neglect, or exploitation by someone else.
Abandonment is also grounds for deeming a parent unfit in Florida. Abandonment of a child means that, despite being able to, a parent made no provision for the child’s support. Furthermore, abandonment of a child means a parent failed to either establish or maintain a substantial, positive relationship with the child. An official charge of child abandonment in Florida is officially known as “unlawful desertion of a child.” This occurs when a caregiver leaves a child in a situation where he or she knew or should have known that leaving would expose the child to risk of harm.
Not mutually exclusive to the above-listed factors, but worth highlighting, is the fact that a Florida court may also deem a parent to be unfit if they have an established history of drug abuse or mental illness. A history of either does not mean that a person lacks the ability to be a good parent. Evidence of either, however, will merit further evaluation by the court. Courts will be hesitant to place a child in a situation where they are in the care of someone who has a history of erratic, dangerous behaviors.
Florida Family Law Attorneys
Being found as an unfit parent in Florida can have serious repercussions. A person can be denied custody and visitation privileges. An unfit parent determination may lead to termination of parental rights. There can also be criminal charges associated with the determination. At the end of the day, we all want what is best for the children. At Orlando Family Team, we are here to represent you as we work to preserve the best interests of your child. Contact us today.
For today’s episode: In honor of Mother’s Day last week, we ask: do you have what it takes to be a good Mommy? Legally speaking, that is.
But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
How Do You Prove a Mother is Unfit?
Rachel from Tennessee asks: “What does it take to prove a mother unfit in court?”
Great question, Rachel! The short answer is that in deciding whether a mother — or father — is “unfit” as a parent, a court will assess a number of factors, but the overriding concern is the best interest of the child.
Then: The “Tender Years” Rule
As a legal matter, the question of a mother’s “fitness” arises in cases where the custody of one or more child is in dispute. Custody is, of course, an issue in divorce cases, and it can also come up when unmarried parents can’t agree on custody arrangements.
Beginning in the mid-nineteenth century, most American states adopted a rule known as the “Maternal Presumption” or — somewhat more whimsically — the “Tender Years Doctrine.” Under this rule, custody of minor children was usually awarded to the mother, unless — and here’s where we get back to the question — it could be proven that the mother was not “fit.” Evidence that a mother was unfit would include mental illness, alcoholism, or an abusive relationship with the child.
Now: The Best Interests of the Child
Nowadays, only a few states have a presumption in favor of the mother. Most states have embraced a standard of equality: neither parent is assumed to be a more appropriate parent. In all states, the paramount consideration in deciding child custody cases is the “best interest of the child.”
Having said that, most states’ family courts allow a preference in custody cases for the parent who can demonstrate that he or she was the child’s “primary caretaker” during the course of the marriage or relationship with the other parent. The primary caretaker rule has gained acceptance due to the evidence of psychologists regarding the bond between a child and his or her primary caretaker as very important.
Most states’ family courts allow a preference in custody cases for the parent who can demonstrate that he or she was the child’s “primary caretaker” during the course of the marriage or relationship with the other parent.
So, in custody disputes today, courts are not looking at the fitness of the mother as such, but are usually analyzing whether giving custody to the “primary caretaker” is in the best interest of the child. However, the fitness of the primary caretaker is, of course, an important consideration in determining the best interests of the child.
It’s Not Easy Being Unfit
Working Doesn’t Make You Unfit
The fact that a mother works should not count against her “fitness” to have custody of her child, provided that she can make arrangements for child care while she is working. However, if there is a major difference in workload between the two parents, the parent with the flexibility to spend significantly more time with the child might have an advantage in a custody battle.
Again, custody laws differ from state to state, and the outcome will depend on the facts of the specific case. You should always consult with an attorney when a custody issue arises.
You can send questions and comments to [email protected] Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.
About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).
When spouses with kids separate in New York, the first thing that comes to mind, along with the division of marital property, is, who, among the parents, will get custody over the children? When deciding who, among the parents, will get custody, New York state criteria for an unfit parent generally is based on the best interests of the child.
New York’s Domestic Relations Law §§ 240 and 70 provides that either parent has no automatic right to sole custody of the child. Only the best interests of the child are considered in determining custody. New York cases have produced a wealth of jurisprudence on New York State criteria for an unfit parent. In recent cases, custody has been decided based on, not necessarily who is the unfit parent but, who is the less fit and more fit parent.
New York courts decide custody issues, depending on the best interests of the child. Included in this “best interests” standard is whether a parent is unfit. New York jurisprudence has provided criteria for determining who is an unfit parent. However, no single factor is controlling, and all factors are considered and used in evaluating the totality of circumstances to determine who the more fit parent is to have custody over the child.
Abuse, neglect, abandonment, and interference with visitation rights
If a parent has been found to hit the child or has abandoned the child for a particular period of time, this parent can be considered unfit. New York courts have also transferred custody from a mother to a father, when the mother willfully moved to another state and hid the whereabouts of the children from the father, such that the father had to employ an investigator to find his children (Entwistle v. Entwistle, 61 A.D.2d 380 (1978)).
Conditions in the home environment
A parent who provides better home environment conditions can be considered a better and more fit parent because the court does not want to leave the child in a dangerous and unhealthy environment. For instance, if the parent has a new partner who is violent or holds frequent parties with drugs and alcohol in the house, this parent can be considered unfit by New York courts to acquire custody over the child. If the parent also permits a new partner to stay the night when the children are in the same house, this could be considered against such parent in determining custody issues.
Although not controlling, a parent’s finances can also be considered in determining who is a better parent to be awarded custody of a child. It is not the sole determining factor, however, since child support is awarded to whoever has custody, and this child support has already been calculated to provide for the child’s necessities for living.
If a parent is found to use and abuse drugs and alcohol, this parent is less likely to be granted custody. When talking about drug and alcohol abuse, it is important to show that the use is not merely occasional or social, but heavy, almost daily use that can impact the parent’s ability to function and thus, affects his relationship with the children.
If the parent has a diagnosed mental illness, personality disorder, or emotional instability that impacts his or her ability to be a good parent to a child, this can be used to argue a case that such parent is an unfit parent.
Aside from mental health, the parent’s physical health is also considered by the court in determining whether a parent is unfit. Clearly, if the parent cannot even physically care for his own self, it is safe to assume that such parent cannot also physically care for another person, let alone a child. If a parent has several physical illness or disability, such parent may be considered unable to physically care for the child. In this case, New York courts might declare a physically disabled parent unfit to be awarded child custody.
Child care arrangements
Parents have to work in order to support their children. The issue of who takes care of the children while the parents are at work, especially for young children, is taken into consideration by the court when determining which parent to award custody. If the parent goes out every night and leaves young children alone at home, despite the fact that these children have told their parent that they do not like to be left alone at home, this parent can be considered unfit.
How a Texas Court Determines a Parent Unfit
In any state, a child’s best interest always comes first during divorce and custody battles. Most often, a child’s best interest means both parents are involved in their lives with dual custody. Full custody will be given to one parent if the other proves to be unfit and their presence in the child’s life isn’t in their best interest. When an individual is considered an unfit parent, they can lose their custodial and visitation rights. If you’re wondering how someone can be deemed and unfit parent, please read further.
So what makes a parent unfit parent in the state of Texas?
The Texas unfit parent definition is somewhat open to the interpretation of the judge handling the custody case. However, the Texas Family Code general guidelines state a parent is deemed unfit to raise a child if doing so would significantly affect the child’s physical or emotional health and development. It’s the judge’s job to determine which act or acts would significantly affect the child if the accused parent was to have custody rights.
The judge will need proof of negligent acts. In the courts eyes, determining an unfit parent include:
- A history of drugs or alcohol
- Sexual offenses
- Emotional abuse
- Unfit living conditions
- Unstable environments
- A history of family violence, however, is intolerable and almost always deems a parent unfit
Most of these determinations are on a case-by-case basis, meaning each case is different and a decision cannot be made without investigation or evidence.
Presenting Evidence That a Parent is Unfit
In order to prove that a parent is unfit or to prove innocence, the evidence must be presented in court. This evidence can include:
- Police reports
- Phone logs
- Text messages
- Witness statements
However, if you’re deemed an unfit parent, Texas doesn’t automatically take away all of your parental rights. Since these cases are situational, the judge can determine your parental rights or lack thereof based on the severity of the case. People make mistakes – and, because the child’s best interest usually involves a relationship with both of their parents, there are ways you can redeem yourself.
You can start by maintaining a steady job to show you are responsible and financially stable enough to support your child. Make the effort to spend meaningful time with your child. This will prove you are willing and able to provide the love and support a child needs while growing up. Witness statements can also act as positive character references. Surround yourself with good people, and let them tell the judge the kind of person you are and why you should have co-custody of your child.
Going to court is never easy. However, hiring a lawyer will help you stay organized and ensure you’re presenting the best case possible. With your child’s future life at the forefront of a custody battle, let the professionals help you. At Bineham & Gillen, your child’s best interest is always our best interest. Contact us if you’re in the middle of a divorce or a custody battle and have any questions or are in need of representation.
If you believe your child’s other parent is unfit to raise them, you might consider seeking full custody through a divorce or custody action. Depending on the circumstances, having sole legal custody and primary physical custody of your child could protect them from your former partner’s irresponsible or dangerous behavior.
Obtaining full custody in a Connecticut child custody case is not easy. You will need the help of a determined lawyer familiar with all the legal statutes and jurisprudence related to your case. Get in touch with an experienced attorney to improve your chances of succeeding in court.
What is Full Custody in Connecticut?
Child custody consists of legal and physical custody. Legal custody is the ability to make major life decisions for the child, and physical custody is where the child resides primarily. Obtaining full custody would mean receiving sole legal custody and primary physical custody.
Sole Legal Custody
When awarding legal custody, the court reviews all the facts of the case to ensure both parents are fit to raise the child. It would take a significant amount of evidence to prove one parent should have sole legal custody. However, if successful, the parent with sole legal custody would not have to consult with the other parent when making significant life decisions for the child.
Primary Physical Custody
When ruling on physical custody, the court will examine each party’s living situation to determine where the child should reside. The court will always consider the child’s best interests when making these decisions.
If one parent is awarded primary physical custody, they would be responsible for housing and caring for the child on a regular basis. The other party would receive visitation.
Proving the Other Parent is Unfit to Share Custody
When both parties in a custody case are healthy and capable of parenting, the court generally finds that it is in the child’s best interests to have a relationship with both parents. Consequently, it is common for the court to award parents joint legal custody and shared physical custody.
To obtain sole legal and primary physical custody with limited or supervised visitation, a Connecticut parent would have to prove the other party is completely unfit to parent. Potential issues that may demonstrate an inability to raise a child include:
- Substance abuse problems
- A history of violent criminal offenses
- Severe mental health issues
- Unsafe or unstable living conditions
- A history of absent or uninvolved parenting
In cases involving drug or alcohol abuse, any visitations with the child would be supervised. Parents without stable living situations would likely not be allowed overnight visitation rights.
When fighting for full custody, it is not enough to claim the other party is an unfit parent. One must gather evidence proving their parental involvement would harm the child. Demonstrating the other party’s substance abuse issues, criminal record, or homelessness might involve issuing subpoenas to obtain documents or have witnesses testify before the judge.
Work with an Attorney to Obtain Full Custody in a Connecticut Child Custody Case
If you are seeking full custody, it is best to work with a skilled lawyer on your case. Our legal team can help you secure all the necessary witnesses and evidence to prove the other party is unfit to parent. Contact our firm today for help obtaining full custody in your Connecticut child custody case.
When you’re locked in a child custody battle with your former spouse, you want to ensure that you conduct yourself in a positive way to improve your chances of getting preferential custody. Even if you are an excellent parent, you need to prove it in a court of law if you want to see your children, and your word alone isn’t enough to satisfy a judge. In order to reach the best possible outcome, you need to not only prove that you are an excellent parent, you need to illustrate that your former spouse is a less dependable choice. By working with a Tampa private investigator for child custody cases, you can build a case against your former spouse while reinforcing your own. Once you have a Tampa child custody private investigator gathering information on your former spouse, you can focus on proving that you are an excellent parent.
Maintain a File of Your Child’s Important Documents
As a parent, you must always be cognizant when keeping records for your children. If you don’t practice careful recordkeeping, your children will be at a disadvantage when it comes to school, health, and overall happiness. Loving parents are always involved in every aspect of their children’s lives, and they have the documents to prove it. Keep a file of the following records to prove that you are a great parent:
- Birth Certificate
- Social Security Card
- Academic Transcripts
- Behavioral Reports
- Awards and Certifications
- Health Records
Illustrate Your Devotion to Your Children with a Story
When you’re making your claim for custody in court, you want to effectively communicate why your children will be safer with you than your former spouse. Pleading for custody and promising that you will be the better parent isn’t going to convince the judge that you deserve preferential custody. Utilizing a story that showcases your devotion to your children is a more effective strategy for appealing to the judge’s logos and pathos. Perhaps you can tell a story about a time when you were there for your children when your spouse was unavailable, or maybe you can detail some of the important and unique connections you share with your children. Either way, you want the judge to perceive your relationship with your children as vital to their well-being and development.
Present Evidence Against Your Former Spouse
When you hire a Tampa private investigator for child custody cases to develop a case against your former spouse, you will need to present the evidence before a judge once the investigator has collected enough information to make a compelling case in your favor. This is a surefire way to prove that you are an excellent parent. Not only did you take the initiative to prove your worth, but you were also proactive in shaping your children’s future.
To schedule a consultation with an experienced Tampa child custody private investigator from Darwin Securities, please submit to our contact request form.
In California, an unfit parent is a parent who, through their conduct, fails to provide proper guidance, care, or support to their children. This can include not only a parent’s actions but also a home environment where abuse, neglect, or substance abuse is present. In most cases, an unfit parent has a Child Welfare Services safety plan in place in their home or has an open investigation into their home and parenting.
Only in rare cases do California judges cut parents off from their children. Doing so requires significant evidence, more than mere claims and accusations from the other parent. In a child custody case, a parent alleging unfitness must provide actual proof and show the following kinds of circumstances:
- Domestic violence
- Mental illness
- Substance abuse
At any time during a child custody proceeding, a parent or the court may request a child custody evaluation be performed to determine parental fitness. A child custody evaluation is conducted to decide whether granting one or both parents custody is in the best interests of the children or places the children at risk in any way.
Factors Included in a Child Custody Evaluation
The court uses a child custody evaluator to examine the parties, their homes, and their relationship with their children. This child custody evaluation reviews several factors, including the following when making their child custody determination:
- Whether one parent been the primary caretaker in the children’s lives
- Which parent can best understand and attend to the children’s needs
- The children’s feelings towards each parent and a desire to be with one parent over another
- If a parent sets age-appropriate limits and a responsible parenting style
- How the parent handles conflict with the other parent and their dispute resolution skills
- If there is any evidence of abuse of the children in question or any other children
- Whether there is domestic violence in the household or might be domestic violence in the household
- If the parent currently has a substance abuse problem or has had a problem in the past
- Whether the parent is mentally ill and the mental illness is a threat to the children
Additionally, the child custody evaluator may interview a children’s teachers, therapists, or other adults involved in the children’s life. Regardless of which factors the child custody evaluator uses in their evaluation, the evaluator’s final decision rests on what is in the best interests of the children.
Factors Excluded in a Child Custody Evaluation
A child custody evaluator may not give preference to either parental gender, nor may he or she consider the following when determining parental fitness:
- Sexual orientation
- Financial status
If a parent is found unfit by the child custody evaluator, the evaluator will suggest an appropriate visitation schedule for that parent. Visitation may be supervised, limited, or denied depending on a parent’s circumstances.
When neither parent is found to be a threat to the child and joint custody is a possibility, the parents can work with the child custody evaluator to limit parental conflict and establish an acceptable parenting plan.
An Experienced Attorney Can Help You
Along with a child custody evaluator, having an experienced family law attorney by your side can also help you focus on what matters most in your case. At Fernandez & Karney, we believe you deserve to be an active participant in your children’s lives and will help you try and gain whatever type of role you envision that to be.
Call Fernandez & Karney today to find out more about how we can help you with your child custody arrangements during a confidential consultation. At Fernandez & Karney we are committed to fighting for the best interests of both you and your children.
If you are seeking full custody of your child, or if you wish to have your ex-spouse’s parental rights terminated, one of the grounds to do this is based on having the other parent declared “unfit”. The definition of an “unfit parent” varies from state to state, and in Colorado, there are several factors that are considered. Proving that your former spouse is an unfit parent takes more than just presenting evidence. Here is an overview.
Factors In Determining An Unfit Parent
In general, a parent may be considered unfit if they are not able to fulfill the child’s needs or have endangered the child’s physical or emotional well-being. Colorado family courts, however, have extremely high standards in declaring a parent unfit – they won’t make this judgment based on generalizations. Instead, the court will look at the specific circumstances of your case and examine factors such as:
- Serious bodily injury on the child
- Physical or sexual abuse towards the child
- The parent’s neglect of the child
- The parent’s history of violence or sexual assault, if any
- The parent’s excessive use of alcohol or other substances
- The parent’s involvement in the injury or death of another child, if any
- The parent’s involvement in previous cases of neglect or dependency, if any
- The termination of parental rights ordered in another state, if any
- The parent’s mental or emotional illness, if any.
How You Can Prove Your Ex Is An Unfit Parent
The court will carefully examine your claim that your former spouse is not fit to be a parent. You will need to present ample evidence of your claim. On top of this, the court will request a psychological evaluation of your ex-spouse and may also ask external caregivers to testify. To strengthen your case, here are some things you can do:
- Gather all documentation, even those that are not recent. This can include police reports, criminal history, medical records, drug tests, and any documentation of past allegations against your ex.
- Highlight specific incidents that affect your child. Perhaps there is a formal report of your ex-spouse driving while intoxicated with your child in the car. Or perhaps there are medical records showing that your child has sustained physical injuries from domestic violence. As much as possible, use documentation to build a complete account of such incidents.
- Present witnesses that directly support your claim. These may be persons who saw the harm or endangerment of your child, or professionals (like physicians and psychologists) who can provide expert testimony that backs your case.
- Hire a family law attorney, particularly one who has a successful track record in Colorado family courts.
If you are not sure on how to proceed in dealing with your child’s other parent, don’t hesitate to talk to us at Goldman Law. We’ll provide you with professional advice that is suited to your specific situation.
Debrina Washington is a New York-based family law attorney and writer, who runs her own virtual practice to assist single parents with legal issues.
Adah Chung is a fact checker, writer, researcher, and occupational therapist.
Frustrated by trying to prove you’re the better parent in the eyes of the court? Understanding the ‘better parent’ standard and what the courts are really looking for will help you win child custody in court and put the stress of your current custody situation behind you.
Winning Child Custody
Parents who hope to win child custody should first become familiar with the child custody laws in their jurisdiction and prepare to show themselves in court to be the better parent. However, it’s also important to realize that the court’s singular goal is the best interests of the child, which may or may not include a ruling of sole custody.
Understand the 'Better Parent' Standard
A lot of parents go into a child custody hearing with the intention of seeking sole custody. For some parents, this is because they believe that the other parent is “unfit” to raise their child. Others would prefer to have sole custody for other reasons.
However, any parent hoping to win child custody should realize that there is a higher burden of proof for the parent seeking sole custody. Factors that play a role in this decision:
- Courts don’t want to interfere in parent/child relationships: Most judges are reluctant to prevent either parent from having a relationship with their child because the implication is that both parents, together, are best able to care for a child.
- One parent must be established as a better parent: To award sole custody, the courts have to establish one parent as the ‘better parent,’ which can be difficult to do, particularly if both parents have been involved up until this point.
- The burden of proof is on you: As a result, any parent seeking sole custody has to prove that he or she is best able to care for a child, with or without the assistance of the other parent.
From a judge’s standpoint, parents should not be “trashing” one another during a child custody hearing. Instead, the parent seeking sole custody should focus on proving that he or she is the better parent without attacking his or her counterpart.
Prove You're the Better Parent
Parents seeking sole custody should focus on the following factors to support a sole custody petition:
- The physical well-being of the child: For example, focus on your child's routine, sleeping habits, eating schedule, and after-school activities. Judges tend to notice parents who encourage a healthy lifestyle.
- The psychological well-being of the child: For example, making sure that the child has access to liberal visitation with the other parent. Judges tend to favor parents who openly support the child's ongoing relationship with the other parent.
Consider Joint Custody
Sometimes neither parent is the one to win child custody. Instead, the courts fail to determine that either adult is the better parent and decide to rule in favor of joint custody, which can be joint legal custody or joint physical custody.
Parents should recognize that a ruling of joint custody is not necessarily a loss. In many cases, it is actually the situation that best suits the best interests of the child.
In addition, joint custody allows both parents to share equal responsibilities in the care of the child and helps facilitate a proper bond between the child and both parents.
Agree on a Parenting Plan
In cases where no "better parent" is established the courts may rule in favor of joint custody. In these cases, parents should work together to determine a parenting schedule.
Many states actually require a written parenting plan, but even if your state does not, it can be helpful to put your intentions down on paper and work together to establish a schedule that works for everyone involved.
I reluctantly entered into a consent child custody order with the mother of my child in 2013. We were never married and never actually lived together. The child is now five having been born in 2011. I get visitation under the 2013 order, but the court never heard any evidence in 2013. We simply agreed. Now, I am very concerned this mother is unfit. She continues to smoke around the child who has asthma. She also has been charged with drug possession in both 2012 and recently. She will not let me have a relationship with my kid. She threatens to move out of state. There are things I need to tell the court about from the child’s birth until 2013 (date of current custody order), but my attorney says I cannot use the 2011 to 2013 evidence in my motion to modify custody. I want primary custody with the mother having supervised visitation. Is there any way I can present the proof of what this mother was like from 2011 to 2013? I think the mother of my child is unfit. What can I do?
– Worried about unfit mother
You must have a material change of circumstances to modify a child custody order (North Carolina General Statutes Section 50-13.7(a).). Typically, the change of circumstances is a comparison between (1) the facts that existed when the 2013 order was entered and (2) the facts that exist now. For example, if the mother was a drug addict in sobriety in 2013 and now the mother is actively using illicit drugs, then that probably would be a material change of circumstances that entitles you to a custody modification. You will need to link the drug use to bad parenting. Typically, the judge will not allow evidence before 2013 “to prevent relitigation of conduct and circumstances that antedate the prior custody order.” Newsome v. Newsome.
Under limited circumstances, the trial court judge can permit evidence that pre-dates the current order, which in your case is an order signed in 2013. The North Carolina Court of Appeals recently addressed the issue of when the court should hear evidence that predates the current court order in determining whether there was a change in circumstances warranting modification of a child custody order. The new North Carolina case is Robinson v. Cain, and this case is close to your situation.
Robinson is the father and Cain is the mother. Robinson and Cain entered into a custody consent order, much like your situation. The court did not hear evidence of Cain’s drug abuse at the entry of the last custody order. The Court of Appeals held that Robinson should be permitted to present evidence pre-dating the existing custody order because the court had not heard the evidence.
You should be able to present the evidence concerning the mother’s unfitness from 2011 to 2013. Readers, treat this as cautionary. If the other parent has significant issues such as drug addiction, please don’t sign consent orders and then expect to bring up the drug addictions later. Put all of your child custody facts out there from the beginning in the best interests of your child. There is a narrow exception under Robinson and Newsome, but don’t plan your child’s life around narrow exceptions.
Have Family Law Questions?
Send them to Ask Carolyn! Submit questions through the Ask Carolyn website, direct message Carolyn on social media (Twitter & Facebook), email [email protected], or mail your questions to P.O. Box 9023, Greensboro, NC 27427. Please do not put identifying information in your questions.
Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your unique case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”
This blog is revised from a previous Ask Carolyn published in the Rhino Times.
Even the best parents have insecurities about how they are performing in that role. It’s easy to wonder if you are being too strict, or too lenient, a helicopter parent or a neglectful one, putting too much pressure on your kids, or not encouraging them to live up to their potential. Every day, there are a hundred choices to make, from what to serve to breakfast to what time bedtime should be. Nobody gets all of those choices 100% right, even under perfect parenting circumstances, but that does not necessarily mean they are an unfit parent.
And almost no one has the time, energy, or resources to parent “perfectly,” whatever that means. There are jobs, other kids to care for, housework to do, bills to pay. Most parents do the best they can with the hand they are dealt, and still those insecurities about being a good parent persist.
That’s why it strikes fear into the heart of a parent involved in a child custody case to hear the other parent threaten, “I’ll tell the court you’re an unfit parent!” What exactly does that mean, and what should you do if your partner or ex-partner accuses you of being an unfit parent?
What Does it Really Mean to Be “Unfit?”
To understand what it really means to be an “unfit parent,” let’s go to the source: the Minnesota “best interest factors.” Minnesota courts must consider all of these factors when determining the custody arrangement that would be best for a child.
Since parents with substance abuse or mental health challenges are especially vulnerable to threats of being accused to be an unfit parent in court, let’s take a look at what the law has to say about it. Minnesota Statutes Section 518.17(1)(a)(5) says that a court making a custody decision must consider (among other factors): “any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs.” (Emphasis added.)
What that means is that having a history of substance abuse, mental illness, or physical illness does not make you an unfit parent. Neither does admitting these struggles, especially if that means you are getting the help you need. As long as your physical, chemical, or mental health issue is not preventing you from giving your child the love and supervision they need and taking care of their other basic needs, the court will not hold it against you.
A recent case of which we are aware involved a mother who had had a recent history of substance abuse. However, she sought and received treatment and was in recovery. Her ex-husband tried to get custody, accusing the mother of being an unfit parent. Unfortunately, the ex-husband’s new spouse physically abused the child. The court recognized that it was better for the child to be with the mother, who was actively taking steps to be a healthy parent and overcome her past challenges.
Why Calling Someone an Unfit Parent is not an Effective Threat
Most of us realize on some level that letting a child have Pop Tarts for breakfast instead of oatmeal once in a while isn’t going to tip us over into the “unfit” category. But there are parents who have genuine struggles, like a history of substance abuse or mental health issues, that they legitimately fear their co-parent will successfully use against them in court. That’s especially true in the age of social media, when everyone has cameras in their pockets. It’s reasonable to fear that a picture or video taken at the wrong time or presented out of context will make you look like a bad parent.
Either parent can hurl accusations of unfitness at the other, but often, it is a father who threatens to accuse a mother of being unfit. Here is a scenario we often encounter: the mother’s primary concern in the case is the children. The father knows this, and in order to manipulate the mother and win concessions that he wants, he threatens to jeopardize what the mother cares most about: her ability to raise her children. Mothers are especially vulnerable to this tactic if there are aspects of their past they don’t want paraded before the court.
What you need to know is that if you are a parent who has been accused by a spouse of being unfit, these accusations rarely are found to be sufficient to deny you custody or even limit your parenting time.
Threats against mothers often have added weight because of societal expectations that persist about mothers: that they should be constantly focused on their kids, endlessly nurturing, and utterly self-sacrificing. Fair or not, society does not have those same expectations of fathers. So for a woman, the threat of being declared an unfit parent means not only the potential loss of her children, but the societal disapproval that goes with it. In short, this shame often stops mothers from fighting back for fear of being “dragged through the mud.” What you need to know is that if you are a parent who has been accused by a spouse of being unfit, these accusations rarely are found to be sufficient to deny you custody or even limit your parenting time.
It’s not that mothers never make false accusations against fathers to gain an advantage in custody matters; it’s just that a threat of unfitness tends to be especially effective against a mother for the reasons above.
More on Minnesota Law and Parental Unfitness
The best interest statute referenced above also states that “the court must consider all relevant factors.” The court is not permitted to focus on one factor to the exclusion of all others. The statute also specifically states that “the court shall not consider conduct of a party that does not affect the party’s relationship with the child,” further reinforcing that a parent’s struggles or flaws shouldn’t determine custody if they don’t affect the relationship between parent and child.
What’s more, if either parent requests joint custody, there is a rebuttable presumption that joint legal custody is in the best interest of the child. That means if one parent tries to prevent the other parent from having joint legal custody, it will be their burden to prove that joint custody is not in the best interest of the child. The parent cannot just make an accusation of unfitness and expect that it will stick.
If you are a parent who is worried that the other parent will take away your child because you are “unfit,” you don’t have to give in to threats or accusations. Consult an experienced Minnesota child custody attorney to discuss your options. You don’t have to be a perfect parent to be a fit one. We will do everything in our power to help make sure your relationship with your child continues to be a strong one. Please contact Mundahl Law to schedule a consultation.