Accusations of being an unfit parent are often brought up during bitter custody battles. Even after a divorce, parents may have serious concerns about their child’s safety when they are with the other parent. But just what makes a parent unfit for custody or visitation?
By WomansDivorce | Answers by Brette Sember, J.D.
Each state has specific statutes that address the issue, but the following is a broad definition of the term:
“An unfit parent is someone who should not be trusted to take care of the child. This could be due to instances of abuse, neglect, substance addiction, or putting the child in situations that would endanger or be detrimental to the child.”
Courts need more than just a parent’s word that the other parent is unfit to care for their child. To prove someone is an unfit parent requires evidence that their actions are detrimental to the child. If the following points can be proven, a court could determine there are grounds to find a parent is unfit:
Unfit parenting needs to be proven to affect the outcome of a custody case or to change visitation rights. The parent who claims the other parent is unfit will need to provide evidence to support their claims, such as:
Each state has guidelines that detail what makes a parent unfit for custody or visitation. If you are facing a situation where the other parent is a danger to your child, it is best to get an experienced family lawyer as early as possible to help you with your case. They can make sure you gather the evidence needed, as well as present a compelling case to the court.
Judges consider the best interests of the child when deciding custody and visitation issues. But evidence that a parent’s conduct is placing the child in danger or could cause mental harm can result in a judge finding that parent unfit. A custody evaluation may also be ordered to help with making the final decision regarding custody and visitation.
In some situations, the judge may remove the child from the unfit parent’s home and reevaluate the parent’s fitness after a certain amount of time. This time period allows the parent to make reasonable efforts to remedy the situation, such as seeking drug or alcohol treatment. Failure to make progress within the timeframe could be considered grounds to find the parent unfit.
If the court deems that a parent is unfit, sole custody may be awarded to the other parent. Depending on the allegations, the judge will suggest an appropriate visitation schedule for that parent. This may mean visitation is restricted, supervised, or even denied depending on the circumstances.
Nancy's Question: My ex-husband has given me a choice to make. Sign custody over of my 2 boys (one being autistic) without any visitation, or get taken back to court while he tries to prove me an unfit mother. What does it take to prove unfit? I eat organic food and live a clean chemical free life down to organic shampoo and laundry detergent. My new baby (from someone else) even wears cloth diapers. Who do you talk to if the ex mentally abuses the children? He also tells them all the time that I will go to jail if I don't obey what he tells me to do.
Brette's Answer: I want you to talk to an attorney as soon as you can - call and arrange for a free consultation with someone who does family law. Don't listen to your ex and don't sign anything! There are many ways someone can be an unfit mother - not supervising the children, not getting them medical care, abusing them, putting them in dangerous situations - too many to list. You sound like a wonderful mom and it doesn't matter if you have a baby with someone else. Get an attorney and don't let your ex push you into anything.
It sounds like you should take your children to a therapist if you are concerned about the treatment they are receiving from your ex. This is something to discuss with your attorney for sure, but getting them some help has to be your first priority.
Your ex cannot have you go to jail for not doing what he says. He sounds like an abusive and controlling person and you need a support network to help you deal with this. Get a good attorney, consider seeing a therapist yourself and if you need to, contact a domestic violence shelter in your area for protection, or for support. Good luck!
Erika's Question: I have had sole custody of my child ever since he was 3 years old (his father signed custody over to me). When my son hit 8, his father tried to get custody and the courts found him unfit morally and I still have sole custody. It has been 3 years since that has happened and his father hasn't tried to contact him in anyway; not a phone call or anything since that has happened. Now is there anything I can do to keep him from seeing him at all?
Brette's Answer: It doesn't sound to me like you need to do anything. You have sole custody and the father has no visitation rights. There's nothing else you can get. He can always try to seek visitation again in the future but it doesn't sound like he would be successful.
B's Question: My ex keeps our son every other weekend, and I believe that he is becoming more and more emotionally and mentally abusive with my son. Last night he called our son neurotic and doesn't hesitate to speak this way in front of him. He drops in and out of his life, one minute saying he won't be seeing him again and then randomly showing up at his school to pick him up. My son's school is aware of the situation and has an increasing concern, as do I. My son is showing worsening signs of anxiety, and I have come to the point where I feel that I need to protect my son from his Dad. What can I do? I am raising my son alongside my partner (same sex) which is another concern. I do not want my sexuality to endanger my custody and my ex has threatened this.
Brette Answers: You need to go back to court and get this changed. Visitation is NOT healthy if it is emotionally damaging to your child. You can ask to have visitation suspended while the court figures out what is going on - which may involve a psych evaluation of your ex and possibly one of your child. If your ex got counseling, he might be able to spend time with your son again. The fact that you are partnered with another woman is NOT a factor. It has nothing to do with your ability to parent and is certainly not a strike against you in any way.
Sun's Question: My 12-yr-old daughter was sexually abused by her father. The DCFS finding was 'indicated' and he can see her only when supervised. I moved out with her when the investigation started and filed a divorce. Now he is appealing the finding and demands to see her regularly. While the divorce is ongoing, should I let him see her regularly as he keeps saying he has his rights? But the thing is my daughter is very reluctant to see him.
Brette's Answer: You should talk to your attorney and your caseworker and follow their advice. If you allow contact and he harms her, you could be charged with neglect.
Michele's Question: I have sole custody of my 5 year old twin boys. I learned that one of the twins was being molested by their half-brother while they were visiting with their father. Now the older brother is not around the twins, however they do not want to go to their fathers anymore to spend the night. Do I really have to make them go stay all weekend when they cry and beg me not to make them? The one that was molested still to this day talks about the "bad things" his half-brother did to him. Even though DFCS dropped the case, they want me to put the twins in counseling, but won't refer them to a counselor! Please...help me!
Brette's Answer: You can certainly begin a case to limit visitation, or perhaps put some restrictions on it. Your son HAS to go to counseling. Ask your pediatrician for a referral. He will never recover from this unless you get him professional help.
Stephanie's Question: My daughter's father was recently charged with aggravated child abuse towards his other son, but he has not been incarcerated yet. Is there any way he will be able to have visitation with my daughter?
Brette's Answer: Generally, visitation would be on hold or supervised until there is a conviction. At that point, visitation would be stopped.
Leanne's Question: I recently filed for child support against my ex. I have a permanent restraining order against him because he tried to kill me and my unborn daughter. I have several police reports where he threatened to take my daughter and I will never see her again. Once she was born he attempted to gain visitation, but my attorney argued it was not in my child's best interest. It has now been 8 years. My current husband is the only father-figure my daughter has known since she was 3 months old. I am extremely scared that if the courts award visitation she will be hurt. If he tried to kill her before being born and beat me, why wouldn't he do it now? After all, he has never met or seen her.
Brette's Answer: Child support is separate from visitation. If he wants visitation he has to ask for it. The court will be very interested in the past history in this case should he ask for visitation. I can't tell you what a judge would decide. People can change a lot in 8 years, so there is the chance he might be a different person now. There is also the risk he could be a danger to your child. I think any court that would award visitation would only do so on a supervised basis to begin with. You could also petition to have his parental rights terminated and then have your current husband adopt her. Good luck.
JP's Question: I have sole physical and legal custody of our 14 year old. Our parenting plan stipulates that my ex’s "parenting time and conditions, if any, will be arranged by me with input from our 14yr olds therapist". The therapist advised me to keep saying no to parenting time. My ex has been diagnosed with a social disorder and is verbally, emotionally, and is sometimes physically abusive. Do I have to respond to his texts asking to see our child? Nowhere in our decree does it say that I have to respond.
Brette's Answer: It does not sound like your order requires you to respond, although honestly you could simply keep pasting in the same response, something along the lines of "X's therapist does not recommend contact at this time." That way you appear responsive yet shut it down. Talk with your attorney about how to proceed.
Michelle's Question: I have been divorced for a little over a year and the visitation schedule gives my ex-husband and his family way too much time with my children. There is a lot of manipulation and bullying from my narcissistic ex-husband and his family to my children. I have a custody evaluation from our divorce hearing a year ago and a therapist that stated time with him is detrimental to my children. Can I get the visitation that we have in place now changed?
Brette's Answer: You need to show there has been a change in circumstances since the order was entered. A report that was used at your last trial would not be considered something new. If you can show the schedule has been detrimental to your kids and they are having problems because of it, that would be a reason to ask for a change. It's always best to have an attorney if you can find a way to afford it.
Angie's Question: A year ago CPS told my ex to stop seeing my son because they found signs of verbal and physical abuse by him and his wife. He was told to attend parenting classes and joint therapy sessions with my son before visitation would be recommended by them again. He refuses to do either of those things and has foregone visitation for over a year now. My son now wants me to pursue full physical custody (he is 13). His therapist has also said she feels this is in his best interest. I would like to have sole legal custody for decision making at least. Do you think I have a strong case?
Brette's Answer: This is the kind of situation where an excellent case can be made for sole custody. Work with your attorney to be sure you present the best possible case.
Vanessa's Question: I have joint custody with my ex and the kids spend half their time at each house. My 5 year old son has been telling me his step brothers (ages 5 and 4) have been touching him, playing with his privates, and showing their privates. I hot lined it and the state's investigation legitimized the reports and put a safety plan in place and also ordered intensive home services due to inadequate supervision. I have now filed for sole legal and physical custody due to the current safety and abuse issues. I am at this time representing myself due to financial constraints. Will the facts be enough? What are reasonable terms of his visitation?
Brette's Answer: Nothing much can happen until the state investigation concludes. If that is founded, then you're in a good position, since the state has determined the parenting is inadequate and will probably request his visitation be removed. If the state investigation is not founded, then you have a difficult case. It sounds like you will want supervised visitation. I recommend you get an attorney if there is any way to do so.
Jennifer's Question: My children of 10, 9, and 6 have visitation with their father and they came home today and told me that he punched my son in the head a few times and smacked my daughter open hand in the face. Will their word be enough to take away visitation? I'm angry and scared he might do more than that if I am not around.
Brette's Answer: I would suggest you talk to your lawyer. The problem is proving what happened. Your lawyer may recommend you call child protective services.
Julia's Question: My husband and his ex-wife have 3 girls together. We have them half the time and when we take them back they beg us not to make them go. They are terrified of her and say that she is talking death with them and explains to them who will die first if a house fire happens. She locks them in their rooms at night and frequent calls are made to 911 when they are with her. We have multiple pictures and videos that are damaging to her. My house is 40 minutes away and my husband says that we would not have a chance of winning custody because it wouldn't be in the same school district. My worry is we will wait too long and she will harm them or move them. I am in fear for their lives.
Brette's Answer: You need to consult with an attorney ASAP. He or she may advise you file a report with social services/child and family services. A threat of harm to the children is serious and needs to be addressed immediately. No one is going to care where you live if those children are in danger and need to be removed.
Laura's Question: My children are 11, 13, and 15. My husband is basically an absent father, but when he is around, he is either in a great mood or a bully. Bullying is so hard to prove, and so hard to describe unless you are actually there to witness the situation. I'm afraid that lawyers/judges will not realize how devastating it is to my children and me. Is there some kind of stipulation that can be put in the custody settlement that allows for my children to be able to call me or family member if their father is on one of his rampages? I have no way to prove that this behavior exists.
Brette's Answer: I think the best thing would be to get your kids into therapy so that you can have someone who can testify about how his behavior affects them.
Claire's Question: My father has visitation rights that allow him to come to our home for visits. However, my siblings and I do not want to see him nor do we want anything to do with him as he has been abusive throughout our childhood. He visits in the late hours of the night, sometimes 2 or 3 in the morning when we are asleep. He causes tension in the household and when he is unable to call or see my mother he threatens everyone and becomes violent. We feel like we're being used as an excuse for him to see our mother and continue his abuse. My mother is afraid the courts will see her in a bad light if she refuses visitation rights. The last time he visited, he and I got into a physical fight where he hit me. Can we ask for the visits to stop? He isn't coming to see us anyway.
Brette's Answer: Someone can call child protective or family services to report the fact that he hit you (you can even call). This will likely result in a protective order being issued; keeping him away from the home and all of you and suspending visitation. Your mom can file for a modification of the order (and ask for an emergency temporary order) and depending on your age, you may be able to testify. At the very least, your mom can request a Law Guardian or Guardian ad litem you can speak with who can represent your point of view. Your mom can change the locks and not allow him in until this is resolved, but it would be best if she filed before doing so. I also suggest she get an attorney. If there is a teacher or counselor at your school you feel comfortable with, talk to him or her about what is happening.
Candice's Question: I am scared my ex will get visitation with my son. His mother told me he has been seeing a psychiatrist since he was 12. He has been diagnosed as bi-polar, and has been told he is borderline schizophrenic. He was put on lithium about 3 years ago, but has not taken his medicine because he thinks he doesn't need it. He has never had my son by himself, and has only seen my son at his parent's house. His parents have always been very good to me and my son, and actually help me with paying daycare each month. I am worried because my ex's parents are trying to get their son to file for custody so they can have my son. Please let me know what the chances are of him getting any kind of visitation, and if his parents can use the fact that they help me with daycare against me.
Brette's Answer: Nothing can happen until your ex actually files papers. The fact that he has not had regular contact with the child makes it likely he will not get what he is asking for. Your job is going to be to present the court with all of this information. You should get an attorney who can help you do that. His mental health is of grave concern. He sounds like a good candidate for supervised visitation.
You should also be aware that the grandparents might seek grandparent visitation. This could be carefully constructed so that it is just for them and not their son and I think you might not have a problem with that then. The fact that they have been helping with daycare is just one factor the court would be interested in. Your attorney could help you reach a settlement with them so that you would not need to go a trial - it sounds as though you could work something out together.
Alexandra's Question: My ex was a substitute teacher at a high school and he had inappropriate contact with a two students. Would that help my sole custody case?
Brette's Answer: Yes it would. Good luck.
Colleen's Question: My husband has a sex addiction which we've been battling for six years. His behavior went from computer videos to sex online, then to phone contact to sex on phone, and finally to meeting strangers for sex. I finally broke out of my codependent stupor and started separation proceedings. I want my children to have contact with their dad, but I don't see how they can ever be in his home. Currently he contacts us sporadically for visits (I take them to a public place and stay in the parking lot). He so incredibly angry all the time and is telling people that it is me who is withholding the children. They are dying to see him more and my only boundary is supervision. How do I approach custody with a man who is not in recovery but goes to a psychologist?
Brette's Answer: I think if I were you, I would want a child psychologist or therapist to weigh in on this. I assume the kids do not know what his issues are, but they've got to be wondering why you won't allow him to see them (and he might be pointing a finger of blame at you with them). I would want professional advice on how best to handle this. I agree with you that supervised visitation is necessary, but you don't have to be the supervisor (in fact, it is probably easier if you are not). Is there a friend or relative who might be willing to let him come over and visit them at their home? Visitation in public places is a strain on everyone. I think you need to get some distance between you to reduce the anger, but you also need to find a way for the kids to safely continue to have a relationship with him.
Amanda's Question: My husband left me about 5 months ago. I recently discovered his addiction to adult films & other very un-healthy on-line activities. I've found unbelievably awful things on his laptop. I have timestamps on when he was on-line watching these videos. I've even found lots of nude pictures on our computer, of him and another woman. Can I limit the amount of visitation, or have supervised visits until he can kick his sex addiction habits?
Brette's Answer: The first thing you have to understand is that just because someone watches adult videos, he is not an unfit parent. I understand you're offended by it and also betrayed, but it has nothing to do with parenting. As long as he doesn't do it around the children and does not create an environment that is not safe for the kids, it really has no impact. You're not going to get supervised visitation awarded because he watches it.