In years past, there was a presumption in custody battles that children should be with their mother, and therefore mothers almost automatically got custody. Today this scenario is no longer the rule, but it’s a common misconception.
It’s important to know that California law does not favor either parent. Instead, the court must always decide on the child’s best interest, evaluating custody based on numerous factors.
Nonetheless, even today, nationwide, mothers are more often awarded custody—chiefly because historically, mothers are more often the primary caregivers. According to the 2013 census report, only 1 in 6 custodial parents was a father in divorced families.
Given these statistics—and what may seem like daunting odds for fathers in a custody dispute—what are the circumstances that could cause a mother to be considered an unfit parent?
Here are seven situations in which a mother can lose custody of her child:
- Physical abuse includes kicking, hitting, scratching, biting, burning, or any non-accidental bodily injury inflicted by a mother on her child.
- Emotional or psychological abuse can be more challenging to detect and prove. Still, it includes indifference or ignoring the child, destroying their belongings, verbally humiliating or demeaning them, and threatening violence or abandonment, any of which may cause the child to act out, withdraw, become depressed, etc.
- Sexual abuse is any form of sexual contact from the mother (or her new partner)
- Conversely, lying about abuse, engaging in deception, or making false accusations about the other parent is very serious.
Even when a child is not being directly physically harmed, exposure to domestic violence is damaging. If the mother has a history of abusing other children or a partner or any violence in the home, it can be grounds for revoking custody.
Forgetting an occasional dentist appointment or being late to school pick-up a couple of times isn’t the end of the world—it can happen to anybody. But consistent or long-term failure to meet a child’s basic needs (proper food, shelter, etc.), lack of supervision, not attending to hygiene and grooming, frequently missing or ignoring medical appointments, not sending them to school—are considered severe neglect, a form of abuse.
Severe Mental Health Issues
In and of itself, mental illness does not result in a loss of custody. However, a judge can terminate guardianship if severe mental health issues significantly impact one’s ability to care for a child or endanger the child’s safety and well-being.
Mental Health America reports, custody loss rates for parents with mental illness range as high as 70-80 percent, and a higher proportion of parents with serious mental illnesses lose custody of their children than parents without mental illness.
The other parent would need to prove to the court that the child’s welfare is compromised due to the mother’s psychological state. Therefore, a judge may order testing, therapy, expert testimony, and so forth before deciding.
Addiction and Substance Abuse
Addiction is a disease that can make parenting very difficult. If a mother is proven to have a chemical dependency, her custody rights—and even visitation—could be rescinded. Sadly, the children of alcoholics and drug addicts are at increased risk of abuse and neglect, and things like driving under the influence can endanger their safety.
If a mother is suspected of having substance abuse problems, a judge may order testing. Although a failed drug test doesn’t automatically result in loss of custody, it may undoubtedly impact the court’s decision. In some cases, counseling, treatment, and a demonstrated ongoing commitment to sobriety may be conditions of maintaining custody and/or visitation rights.
Lack of Involvement
A mother who wants to care for and raise her child but is absent a great deal of the time, even because of demanding work, multiple jobs, or military service, can lose custody. The court will tend to award or transfer custody to the parent who can be with the child the most.
Violation of Court Order / Parental Alienation / Child Abduction
In California, the best interests of a child, whenever possible, include consistent and meaningful contact with both parents. Repeated canceling, ignoring, or interfering with court-ordered co-parenting time is serious and can result in the restriction, reduction, or loss of custody. The same holds for attempts to turn the child against the other parent or intentionally disrupt the relationship, even refusing to communicate about co-parenting.
Taking a child away without the knowledge and permission of the other parent (even if the child goes willingly) is considered parental abduction, and it is a crime. Withholding the child from the other parent in defiance of a custody order is considered custodial interference.
A divorce or custody dispute may be the most difficult challenge you ever face, leaving a lasting impact on your children, finances, and family structure. If you are involved in a custody dispute of any kind, it is essential to seek solid legal advice from an experienced family law attorney. Our divorce attorneys at Schoenberg Family Law Group help clients all over California, including San Jose. We have an unwavering commitment to excellence and share the goal of preserving our clients’ dignity and humanity during what can be a very challenging and painful process.
By Debra Schoenberg