Determining an Unfit Parent in 2019
Custody disputes can be the most challenging part of a divorce or breakup. Both parents will want as much time as possible with their child or children. When determining custody the court will always make a decision on what is in the child’s best interest. No parent is perfect so little imperfections will not strip a parent of their rights, however, being an unfit parent will cause the court to reduce or limit the interaction between that parent and the child or children.
What exactly is an unfit parent? The legal definition of an unfit parent is when the parent through their conduct fails to provide proper guidance, care, or support. Also, if there is abuse, neglect, or substance abuse issues, that parent will be deemed unfit. Most cases where a parent is deemed unfit, Child Welfare Services has been involved and there may be a safety plan or an open active investigation against the parent.
During a divorce, parents might not agree on custody issues, or one parent might not trust the other with the children. On the order of a judge or at the request of a parent, a child custody evaluation may be held. The purpose is to determine if allowing one or both parents custody is in the child’s best interest, or if the child’s health, safety, and welfare are at risk. The evaluator will consider the following ten factors when making a determination.
1. Setting Age-Appropriate Limits
- Is a 5 year old child allowed to watch R-rated movies on a regular basis?
- What kind of curfew does the parent set for a teenager?
Parents will not always agree about what is age appropriate limitations, but when you have one parent who is allowing extreme situations, this may be a red flag. When parents share joint legal custody, they should jointly make decisions about what is age appropriate but this does not include little things such as bed time. This is when co-parenting comes into play and you have to trust your co-parent is making appropriate decisions in their household.
2. Understanding and Responding to the Child’s Needs
- How sensitive is the parent to the child’s needs?
- Does the parent try to communicate in a way the child can understand?
- How responsive is the parent to the child?
A child needs to feel heard and cared for by both parents. Navigating two separate households is just as challenging for the child as it is for the parents. It is important the child feels they can communicate the same regardless of which house they are at. If there seems to be a disconnect, is a parent responding appropriate and obtaining help when it is necessary? These are all important characteristics of a strong relationship.
3. History of Childcare Involvement
- Does the parent have a good track record of looking after the child’s welfare?
- Has the parent relied excessively on the other parent to take care of the child?
Both parents should have reliable childcare and all information should be shared. Also, both parents should be able to take care of the child on their own without any help. If they are constantly relying on assistance whether it be from the co-parent or from other family members, that may be a red flag that a change in custody is necessary.
4. Methods for Resolving the Custody Conflict with the Other Parent
- How reasonable and cooperative has the parent been throughout the divorce?
- Has the parent refused to compromise or communicate?
Co-parenting is hard! It takes a lot of work to have a positive relationship with your co-parent, but it does take two. If one parent is constantly belittling the other or if every decision is an argument, your child will feel this. A lack of positive decision making and working together can be a basis to change custody giving one parent the decision making power.
5. Child Abuse
- Does the parent have a history of child abuse with this or any other child?
- What is the current situation?
If Child Welfare Services has been involved in a parent’s household a lot, this could be a sign that custody needs to change. Child Welfare Services may have done a thorough investigation into a household to make a determination on whether abuse or neglect should be substantiated or not. If they have a concern they will issue an immediate safety plan which you can bring into court to obtain emergency custody orders. Child Welfare Services Involvement is not always a sign as sometimes the case is closed without investigation, but it is an important sign to look out for.
6. Domestic Violence
- Has the parent been physically or emotionally abusive to the other parent?
- Has the child witnessed this?
It is never okay for a child to be a percipient witness to domestic violence. It is also never okay for one parent to be abusive to the other parent. You have resources available to you which include a domestic violence restraining order, counseling for the perpetrator, domestic violence classes, or just a change to the custody order to reduce interactions.
7. Substance Abuse
- Does the parent have issues with alcohol, illegal or prescription drugs?
If you have evidence that substance abuse issues of the parent is affecting the child, you can obtain a change in your custody order. Even if it is a legal drug such as marijuana, the court can make orders restricting the parents use of the substance to ensure the safety of the child. Substance abuse assessments can be ordered to find out the extent of the substance abuse.
8. Psychiatric Illness
- Does the parent suffer from a psychiatric illness that might pose a risk to the welfare of the child?
Mental health issues does not automatically mean a reduction in time or custody, but it will be something the parent will need to show verification of treatment for. If a parent is active in their mental health treatment and medication, that is a positive for everyone including the child. However, if they are not treating their mental health issues this can be a very dangerous situation.
9. Social Functioning
- Does the parent have any social issues that might negatively impact the child, such as staying indoors all the time and refusing to speak with neighbors?
It is important for the child to have social activities they do with both parents, it leads to positive interactions and memories. If one parent is against activities or even attendance at their child’s activities, this can have a negative effect on the child.
10. Attitudes of the Child Toward the Parent
- How does the child feel toward the parent?
- Is the child comfortable with the parent?
- Is the child afraid of the parent?
It is important for both parents to encourage and foster positive relations between the child and the parent, so it is important that the child is not encouraged to hate the other parent. If a child is expressing concern or is acting out before visits, this can be a sign there may be a break in the relationship that needs to be fixed. It is important to listen to the child and act when appropriate.
What Does A Child Custody Evaluator Do?
The evaluator appointed by the court may review court documents and health records, observe parent/child interactions, or interview parents, children, and involved professionals (i.e., teachers, doctors, etc.). The evaluation will likely also include psychological testing of the parents to aide the evaluator in making a recommendation on what is in the best interest of the child.
When the evaluation is complete, the evaluator will prepare a report for the court in making their decision. If either parent disagrees with the report, an opportunity will be provided to present objections to the court which may include testimony or evidence to the contrary. This report is confidential; if you disclose the contents you could be fined, ordered to pay the other party’s attorneys’ fees, or both.
Also, the court may consider appointing minor’s counsel who will represent in the child in making sure the child’s voice is also heard in a high conflict custody case.
Coming up with evidence to prove an unfit parent may not be that difficult as we live in a digital age. Parents can use photos, videos, and even comments on social media in court to help prove an unfit parent.
If you think you might lose custody, or you feel your children are unsafe with someone else, consider hiring an experienced family law attorney. They will work with you to find a solution that is in the best interest of your children.
Minella Law Group can help you with your child custody case, new or existing.