Child Custody & Visitation

10 Factors Used to Determine if a Parent is Unfit for Custody in 2021

By January 9, 2021 17 Comments
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What does it truly mean to be an unfit parent? 

Determining an Unfit Parent in 2021

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.

Also Read: Legal Resources – Divorce >> 

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.

If you or a child are experiencing domestic violence or abuse, please visit our domestic abuse resources page to get more information about your rights, and how we can help you and/or your child >> 


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.

Have questions or want more information? Schedule a free consultation today.


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.

Join the discussion 17 Comments

  • says:

    Most Massachusetts residents understand that child custody cases involving two biological parents are determined based on the best interest of the child standard. The theory behind the best interest standard is that the law should focus on a child s needs, not on each parent s rights , where children are not property. Findings of parental unfitness are rare in traditional custody cases, because a court can simply assign primary custody to the better parent using the less rigorous best interest of the child standard, which does not require the court to find that the non-custodial parent is wholly unfit to care for a child.

    • Wanda Armstrong says:

      What are the laws in West Virginia pertaining to parental rights if a mother has children in Foster care in NYC? Does Children services in West Virginia automatically assume custody of her new baby? Does the hospital check a database for any other possible children she may have in the system?

  • Aaronwat says:

    I browsed through this site and there’s so much useful information, saved to my bookmarks

  • Alicia Geiger says:

    So do you help PA or no


    Yes i need help asap my son’s father i wanted to see if he is fit to keep my son from me

  • Man who cares. says:

    What does a single mother of 5, 1 3year old girl, 1 6 yr. old girl, 1 11 year old girl, 1 14 year old girl and 1 9 year old boy. All have great potential but but don’t care about anything. There house is completely thrashed despite the mothers attempts to clean. They seem to enjoy making there mom miserable. Mom has no resorses,family or vehicle. Just a dead beat dad. It’s ultra frustrating and I’ve tried for over a year to help or make some sort of difference. There is little to no information on this situation.

  • Understanding DAD says:

    Man who cares. Think about this. She had 5 kids. Not 2 or three. She is not a person who makes good decisions. Children often take on the mindsets their parents have. So she herself has the mindset that she is passing on to her children. She is refusing to step up to the plate and be a parent to her own children. Children need lots of discipline. Obviously she is not capable of doing this. The deadbeat father is also in capable of doing this. In some cases this is because of a deadbeat mother who wants to play the victim. Men and women both must do their best to contribute to raising children properly. All you can do is be a good role model for the children to follow.

    • Marlena Parent says:

      It’s been almost a year sense my kids have seen their father. Reason for that is he over dosed on heroin and my kids found him almost dead. He’s now taking me to court for parenting time and custody. I fear for my kids life when they are around him. I feel he is an unfit parent and should have less possible supervised visits

  • Natalie says:

    Why are my children interview so many times and after a high court appointed a curator in litim for children in 2018? Because of an apparent appeal they did not obey the high court order?
    Know another curator was appointed and we need to see family advocate again and again is this normal?

  • Socjologia says:

    Undoubtedly a wonderful written piece! Weve book marked it and mailed it out to pretty much all of my close friends simply because I know they are going to fascinated, thank you very much!

  • Jeremy t Wildasin says:

    I fought to prove my child was mine took a year got paternity and then nothing happen. I didnt no what to do and we just always got along. I have had my daughter most the time while they worked and stuff for 3 years now my ex took my baby and is hidden her from mer. I got her other kids to tell me that they were not allowed to let my daughter call me. What can I do its been a month siince i heard from my baby!!

    • Juju says:

      Open up an ex parte court , if you have custody already you should not have any problem getting your baby back! Good luck

  • Angela Ball says:

    I’m concerned about some children i know who are been left unattended while there Mum is working.

  • George holland says:

    I need a lawyer to call me

  • Caring Grandparents says:

    What do you do when you feel your grandchildren would benefit from living with a grandparent over either parent?
    Is there a temporary custody provided to the grandparent until the parent got their lives together?

  • Howard Fuller says:

    I need to know my rights as a single unmarried father after the custody parents instantly death in a car accident . Can the custody parents , Mother get custody of my kids , The kids haven’t been Legitimation.. Ga

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