What is an “Unfit Parent” in Custody Cases?

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Just about any parent will tell you that raising kids is both the greatest and toughest job you’ll ever do. You’re fully invested, give it your all, and want the world for your kids. You try to pour the best of yourself into them.

It’s no wonder, then, that the pain, bitterness, and brutality of custody battles often reflect that intensity. You’d go to any length to protect your time and relationship with your children.

Then, add the irreconcilable differences that account for most marriage endings. It can be challenging for a divorcing couple to agree on how to raise the kids. In acrimonious situations, warring spouses may use child custody as a weapon.

In a state of hurt, anger, conflict, and distrust, you may feel that your ex is the less competent or deserving parent. You may dislike the way they do things. You may believe you have a closer, stronger, more essential relationship with your child. You may even feel that your ex is an “unfit parent.”

But what does “unfit parent” really mean?

First, it’s important to understand that the court’s duty is always, above all, to protect the child’s best interests. Except in rare cases, that means ensuring the child can spend consistent time and maintain a meaningful ongoing relationship with both parents. A judge will not remove a parent from their child without good reason.

No parent is perfect. Every mother or father has moments when they were not at their best, things they wish they could do over. The court understands that. In your custody case, you will not be held to a standard of flawless parenting.

In some cases, however, there are serious and legitimate concerns about a child’s safety and wellbeing in the presence of a parent. But mere accusations and claims of unfitness from the other parent are not enough to separate a mother or father from their child.

“Unfit parent” has a specific legal definition. According to California law, an unfit parent is one who “through their conduct, fails to provide proper guidance, care, or support to their children.” That may include their actions or living in a dangerous home environment in which abuse, neglect, or substance abuse are present. Typically, in such situations, an open Child Welfare Services investigation or safety plan is already in place.

During a custody proceeding, at a parent or judge’s request, the court may order a child custody evaluation to determine parental fitness or whether sufficient evidence that granting both parents custody/visitation rights would jeopardize a child’s health, safety, or welfare.

The child custody evaluator is a trained mental health professional, private or court-appointed who will:

  • Meet with the parents (individually or together) and the child
  • Interview other important adults in the child’s life (therapist, doctors, teachers, caregivers, etc.)
  • Examine pertinent records, such as school, medical, mental health
  • Review any reports or documents related to custody (police reports, parenting classes)
  • Request a psychological evaluation of one or both parents

The evaluator will assess numerous factors to determine parental fitness:

  • Is there any history of abuse (physical, sexual, emotional) to the child or any other child? Has the child witnessed domestic violence?
  • Substance misuse/dependency. Is there a past or current problem with substance alcohol, illegal or prescription drugs?
  • Relationship and responsiveness. How sensitive and attentive is the parent? How do they understand and react to the child’s needs and behaviors? A functional, communicative relationship is key.
  • Decision-making. Can the parent make responsible decisions and set reasonable, age-appropriate limitations for the child?
  • Involvement. Has the parent been a part of the child’s life, had meaningful involvement – or have they been largely absent or frequently relied on others to care for the child?
  • Ability to co-parent effectively. How have conflicts and disputes been handled in the past? Is one consistently unreasonable parent refusing to communicate, cooperate, or compromise?
  • Psychiatric illness. Is there a history of mental illness that makes one parent a threat to the child’s safety or wellbeing? While mental illness, in and of itself, does not necessarily make a parent unfit – it is crucial to seek treatment.
  • The child’s wishes. Especially with older children (typically over 14), the court may consider the child’s relationship to the parent and who they desire to be with.
  • Custody evaluators cannot give preference based on gender, race, sexual orientation, religion, or financial status.

Upon completion, the child custody evaluator will provide the court with a confidential report with recommendations regarding custody and visitation. Depending on the evaluator’s findings, the court may order limitations such as supervised visitation or, in extreme cases, may deny an unfit parent both custody and visitation.

When at all possible—and your child’s safety and wellbeing are not at stake—it is beneficial to work together with your ex (and your respective attorneys) to negotiate custody and visitation issues. At SFLG, we’re experienced in every facet of family law. Our knowledgeable, skilled, and compassionate attorneys can help you navigate the challenges of creating a fair, balanced, and satisfying parenting plan—and any serious concerns relating to parental fitness.

By Debra Schoenberg


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