Courts consider several factors when determining whether to grant a parent visitation or custody rights. Among the most critical factors is the parent’s fitness to take care of the children in question and provide a safe environment. Family court judges work under the presumption that it’s in the child’s best interests to have the two parents involved in his/her upbringing and care. Therefore, as far as proving the unfitness of a parent is concerned, there’s a high standard that ought to be met before a judge terminates or dismisses an individual’s parental rights.
How California family courts establish if either parent isn’t fit for custody can be intricate. The judge’s decision is generally based upon the findings of a comprehensive investigation. If your soon-to-be ex-spouse is unfit, your ex or soon-to-be ex-partner is accusing you of being unfit, or you’re seeking to have your co-parent ruled unfit, you ought to talk to a skilled family law lawyer. In this article, you learn how the court determines if you are unfit for custody.
What Constitutes Parental Unfitness?
Child custody disputes are the trickiest issues to solve when a couple is going through a divorce, breakup, legal separation, or contested adoption cases. Both parents want to be allowed adequate time to spend with their children. When deciding on custody matters, the court has the legal duty to decide in the child/children’s best interests. Neither parent is entirely perfect. Thus, minor imperfections won’t strip either of them of their legal rights to be with their children. However, when a parent is unfit, the court will limit or reduce their interaction with the child/children.
An unfit parent is one who, through their behavior, fails to give proper care, support, or guidance to the child. Additionally, if there are substance abuse, abuse, or neglect issues, the parent is considered unfit. Mostly, where a parent has been declared incompetent, Child Welfare has been incorporated, and there might be an active investigation or safety plan against that parent.
Judges don’t just sever the relationship between one parent and the child and hand over custody to the other parent. When one parent seeks to obtain a court order declaring the other parent unfit, there has to be substantial proof. Put otherwise, his/her accusations and claims are simply insufficient without significant evidence to corroborate them.
When parents are in the process of being divorced, they may disagree on whether a given parenting strategy is ideal for their child. Divorce usually creates mistrust between couples that’ll impact their willingness to trust the other on his/her parenting tactics. At the judge’s order or one parent’s request, a 730 child custody evaluation might be conducted.
The evaluations are meant to determine whether permitting both or one parent to have custody serves the minor’s best interests or places him/her at any risk in terms of his/her safety, health, and welfare. The evaluator looks at several different factors before making their determination.
The court-appointed evaluator may review health records and court documents, interview the children, parents, and involved professionals like doctors, therapists, and teachers, or observe child/parent interactions. The evaluation is also likely to include the parents’ psychological testing to help the evaluator recommend what’s in the child’s best interests.
Once the evaluation ends, the evaluator compiles a report for the court to make their decision. In line with the assessment, the court will look at the following factors while making its decision:
Substance Abuse History
The court will look at whether the parent currently has a drug/alcohol abuse problem or had it in the past. It will also look at whether the parent is undergoing any kind of treatment. Any form of abuse of alcohol or drugs (prescription drugs included) threatens the child’s welfare, and the courts take it seriously when making their determination. Alcohol/drug abuse by a parent is believed to affect their relationship with their children detrimentally. Additionally, it could expose the child to a considerable danger. For example, a parent addicted to alcohol might or might not be capable of resisting the drink while the child is under their care. Should a parent become incapacitated while children are under his/her care, his/her judgment may be substantially impaired, creating an unsafe environment for children, particularly young children.
A parent who has fought addiction in the past will be required to prove reliability and long-term sobriety to stand a chance of being granted custody. Any history of relapse could make the judge assume the parent isn’t reliable and pauses a danger to their children.
Child Abuse History
The court will consider past and current incidences of child abuse perpetrated against the minor in question and any other minors. This is a critical consideration as far as any custody case is concerned. If a parent has a record of abusing their children, the court will most likely not favor them. It’s tough to fight any child abuse accusations as far as child custody proceedings are concerned. The court is likely to permit only occasional visitation rights to a parent with a child abuse history. If you reasonably believe or suspect any child abuse case, it’s vital to reach out to the relevant authorities to ensure the child’s wellbeing.
Domestic Violence History
The court will look at any domestic violence instances perpetrated by the parent. It will want to know whether the minor has witnessed any form of abuse. The judge also will consider:
- whether charges were filed in the past in connection with violence in the home,
- whether there’s a history of protective or restraining orders,
- whether there’s reason to believe there may be unaddressed domestic violence issues in the home, or
- if there’s any police report filed that reference the supposed domestic violence incident
Note that domestic violence is not only abuse directed towards a partner or spouse. It also counts as domestic violence if the abuse is perpetrated against children. Domestic violence incidents are also highly likely to prevent a parent from being granted child custody, mainly if directed upon the child.
The Minor’s Attitude Toward the Parent
A child’s age will significantly impact the weight given to their attitude towards a parent. For example, if the child is 14 years old, the court will consider their desires concerning the amount of time they would love to spend with either parent. If the child is younger, the court will analyze their preferences and feelings towards the parent and whether they’re comfortable with him/her. They will look at whether the child fears the parent or is free around them or whether they show affection or desire to be with the parent.
The Extent to Which the Parent has been Involved In the Child’s Life In the Past
The court will mainly be interested in how actively involved in the minor’s life has the parent been since the child’s birth. For instance, is he/she conversant with the young one’s day-to-day routine, friends, or school life? Parents learn beforehand during the divorce process that the time the other parent spends with the children can come with a higher price in the form of child support. Thus, the court considers what parent has been the minor’s primary caretaker throughout marriage and uses the info to decide on the custody issue. A parent who has been involved in the child’s life to a greater extent more than the other is more likely to be granted child custody.
Psychiatric Concerns
The court will consider whether the parent has any mental illness that’ll threaten the child’s welfare and if they’re undergoing treatment for it. Psychiatric concerns include aggressive or unpredictable mental health disorders such as bipolar, anxiety, personality, dissociative, mood, depressive, obsessive-compulsive disorders, and schizophrenia.
If the parent is sick mentally, the court will determine whether the said illness poses any danger to the child’s welfare, wellbeing, or health. Mental disorders are unlikely to impact custody decisions if they don’t threaten the minor’s well-being. Provided the child is well taken care of and safe, parents with psychiatric issues can still be granted custody. The court will need to see evidence of psychiatric prescriptions, counseling, therapy, and other aspects of the parent’s mental health care to determine if they’re suitable for custody.
How the Parent Addresses Custody Conflicts With the Other Parent
Conflicts between divorcing couples can significantly impact the children. The judge will look at how the parent has been handling the custody and divorce proceedings, their conflict resolution skills before that, and whether their tactics are constructive. It will also consider the parent’s history and willingness to work together to resolve the conflict at hand. Has he/she demonstrated in any way that he/she is willing to sacrifice his/her interests for the child’s best interests? A parent determined to minimize conflicts is generally better-placed to be granted custody.
The Parent’s Capability to Make Age-Appropriate Parenting Decisions
The judge will want to know whether the parent has the required common sense to make responsible decisions for their children for aspects like friends, curfew, driving, work, media consumption, religious activities, and staying outdoors. He/she will also look at whether the parent has set safety or bedtime rules for his/her children. The judge doesn’t only look at whether rules and restrictions exist. They will also consider whether these restrictions/rules are appropriate for the child’s age. Otherwise, parents who show responsible parenting skills are highly likely to be granted child custody.
How Well the Parent Understands and Responds to the Minor’s Needs
The judge will examine how the parent has been involved in the young one’s life. Does he/she pay close attention to the minor’s needs whenever making decisions that affect them? Does he/she let the child know he/she understands those needs and take action to meet them? Does the child communicate with him/her freely? If that is the case, how does the parent respond? Is it in an attentive way so that the young one can understand? A parent who understands their child’s needs is highly likely to be awarded custody of the child.
Other factors the judge may consider are:
- Social functioning— here, the judge will look at whether the parent has social problems that may negatively affect the child, for instance, refusing to talk with neighbors and staying indoors at all times. It’s critical for the minor to engage in social activities with both parents. Doing this results in positive memories and interactions. If the parent is against these activities and even refuses to attend when their child participates, it could negatively affect them (the child).
- The minor’s opinion— sometimes, the judge might consider the child’s preferences in a custody case. Generally, this only applies to children over 21 years who can articulate their thoughts reasonably.
- The parent’s living condition— if one parent remains in the marital home and the other packs out, the judge will consider the child’s living condition in the two homes.
- The parent’s capability to have a conversation with his/her child/children— the judge will need to know if the parent and the child have a functional relationship and whether the parent can easily identify the child’s changes in behavior and needs.
A Parent’s Working Schedule Might or Might Not Make them Unfit
The fact that a parent works shouldn’t bar them from receiving custody as long as they can make childcare arrangements while working. But if there’s a significant workload between the spouses, the parent who is flexible to spend substantial time with the child may have the upper hand in the custody case. Additionally, a parent who spends much time working far from where they live (maybe out of state) or works long or odd hours might be denied custody because they might be capable of spending sufficient time with the child or providing enough supervision. The judge may need to see the parent’s willingness to change jobs or relocate to provide a more stable home life for the minor.
If any of the parents dispute the evaluator’s report, they’ll be given a chance to present their objections to the judge, which might include proof or testimony to the contrary. The evaluator’s report is confidential. If any parent discloses its contents, they could be slapped with a fine, directed to pay his/her spouses’ lawyer’s fee or both.
Additionally, the court might consider appointing a lawyer for the child. The lawyer will represent the child’s best interests and ensure their voice is heard in a high conflict custody case.
Collecting proof to show that a parent is unfit might not be that hard since we live in the digital era. Parents may use videos, photos, or even comments on social media to help demonstrate that their partner is unfit.
There’s no simple answer when it comes to establishing whether a given parent is unfit to be granted custody. In contrast, some of the factors a judge considers are obvious, for instance, addiction to a point where the addicted parent cannot function properly and physical abuse, the actual test is always what’s in the child’s best interests.
Your child could undoubtedly benefit by minimizing conflicts between yourselves by partnering with an expert to devise a proper parenting schedule that protects the minor from either parent’s limitations and centers on his/her safety. It isn’t wise for either parent to focus on what he/she believes is unfit. Instead, they should pay attention to what’s indeed in their child’s best interests.
Again, the outcome of a child custody case depends on the facts surrounding the specific case. You must always consult with a lawyer whenever you have a custody issue. If you’re worried about your position as a parent, an expert family law lawyer will be an indispensable asset. They’ll help you collect evidence that supports your position. They may also help you to successfully show the judge that you’ve moved past prior transgressions. If your situation involves a substance abuse history or mental illness, your attorney can have expert witnesses testify about your recovery, stability level, and capability to function as a parent.
Contact a San Diego Family Law Lawyer Near Me
It is worth repeating that there isn’t a definite and straightforward way of how California family courts establish if a parent is unfit for custody. Local judges assess the proof presented to them carefully before making any decision. If you’re going through a divorce or legal separation and have questions on child custody/visitation rights, a family law lawyer is a go-to person for help.
If you have filed your case in San Diego and its environs at the San Diego Family Law Attorney, we can help you. We will answer all your questions and address all your concerns. We may also be able to help you successfully bring or respond to unfitness accusations. Call us at 619-610-7425 today to ensure your child custody rights are protected.
