Proving a Parent is Unfit in a Child Custody Case
How to Prove a Mother Unfit
A mother's (or father's) fitness to raise a child can be called into question during a custody dispute. The term "unfit mother" arises out of the now-outdated child custody doctrine that custody of children should be awarded to the mother unless the mother was "unfit."Today, courts strive to settle on a custody arrangement that is in the best interests of the child, without bias in favor of the mother or father. Still, if any parent, even a mother, poses a danger to the child, the a court can remove the child from the parent's custody.
Determining That a Mother Is Unfit
Examine the mother's behavior.It is not in a child's best interests to remain in the custody of a parent whose behavior puts the child in danger. Consider the nature and frequency of any past instances of:
- Physical violence
- Excessive disciplining
- Emotional abuse
- Drug or alcohol abuse
- Convictions for sexual offenses.
Consider the environment in which the mother is raising the child.If the parent places the child in or fails to remove the child from dangerous circumstances or a dangerous environment, that may be grounds to remove the child from the parent's custody. As you review those conditions, ask yourself:
- Is the parent properly supervising the child?
- Is the parent properly feeding, clothing, and educating the child?
- Does the parent associate with criminals, gang members, violent people, or drug users?
- Is the home well-maintained with heat, running water, and enough space for the child?
- Is there anything else dangerous in the home, such as lead paint or improperly stored firearms?
Gather evidence.You will need to present evidence that the parent or the environment in which the parent is raising the child poses a danger to the child. Assemble any evidence you can, including:
- Photographs, video, and audio files showing physical or verbal abuse
- Medical records related to injuries
- Criminal records
- Communications between yourself and the mother, such as emails, texts, and voicemails
Interview witnesses.You can use witness testimony to prove that it would be in the child's best interests to remove the child from the care of the parent. Speak to friends or family members who may have observed the parent harming, threatening to harm, neglecting, or endangering the child. Get the details of the incident from the witness, then ask if he or she would be willing to testify in court about what he or she observed.
- Your witnesses may also have evidence in their possession, such as threatening emails or voicemails left by the parent.
Petitioning the Court to Terminate or Modify Custody
Initiate a case.In order to ask a court to terminate or modify the unfit mother's custody rights, you must initiate a court case. You can initiate a case by doing one of the following:
- Call your state's Department of Child Protective Services (CPS). Depending on the particular policies of the CPS office in your state, CPS may investigate and file your case for you.
- Petition for divorce. If you are married, child custody will be a major issue in your divorce case. When you are filling out your divorce petition, explain what kind of custody arrangement you want and why the other parent is unfit.
- Petition for custody. If you were never married to the other parent, you can file a petition to establish custody. If you are divorced from the other parent and want to modify an existing custody order, you can file a petition to modify the custody order. Ask the court clerk what forms you need to file in order to make your request. Use the forms to explain what kind of custody arrangement you want and why the other parent is unfit.
- Petition for guardianship. If you are not a parent of the child, you can file to become the child's legal guardian. Ask the court clerk what forms you will need to file, and use the forms to explain to the court why the child should be removed from the parent and placed in your care.
File your documents.Whether you are filing for divorce, custody, or guardianship, you will need to make several copies of your forms and take them to the court clerk. The clerk will fill your original forms and stamp the copies as "filed." You may be required to pay a filing fee. The clerk will notify you when the court sets a hearing date.
- If you are filing for custody or guardianship, you must file your petition in the county where the child lives.
- If you cannot afford to pay the filing fee, ask the clerk how you can file an application for a fee waiver. You must provide information about your household finances and submit the form to the clerk. If the judge denies your fee waiver, the clerk will notify you that you must pay the regular filing fee.
Serve the mother.Once you have filed your petition, you must serve the mother with formal notice of the proceedings. Depending upon your court's rules, you may be permitted to file a "Waiver" or "Acceptance of Service" signed by the parent instead. If you are required to give notice, you may be able to request that the court clerk give notice on your behalf. Otherwise, do one of the following:
- Pay the sheriff's office or a professional process server to serve the parent; or
- Arrange for a friend or relative over 18 years of age and not involved in the case to hand-deliver the papers to the parent.
File a Proof of Service.Have your process server fill out and sign a "Proof of Service" or "Affidavit of Service" form (available from the court clerk) verifying that he or she served the other party.You must then file the signed form with the court clerk.
Presenting Your Case in Court
Attend the hearing.Dress professionally, arrive early, and wait for your case to be called. The judge will ask why you are requesting that the mother's custody rights should be terminated or modified, and why doing so would be in the best interests of the child. The parent will have the opportunity to rebut your arguments with witnesses and evidence.
Present evidence.Bring copies and originals of documents and photographs, and bring audio or video files on a CD. You should arrange your evidence chronologically in a binder so that you can quickly refer to each item in court.
- If you have evidence that came from one of your witnesses, ask the witness about that piece of evidence during his or her testimony.
- When arguing for custody, you should be prepared to present evidence that it would be in the child's best interests to be placed in your care. To demonstrate to the court that you can provide a safe, stable home for the child, bring a copy of your lease or mortgage.
Take witness testimony.You and your witnesses will be permitted to testify about incidents that demonstrate that the parent is unfit. If you have an attorney, he or she will ask questions to guide you through your testimony. If you are representing yourself, explain each incident to the judge calmly and matter-of-factly. After you testify, you can present witnesses to testify about any incidents they observed.
- The court may allow the child to testify at the hearing. Different states have different rules about whether a child's testimony is admissible in court. For example, children over 10 years of age are generally allowed to testify in Ohio, while children younger than 10 must be found by the court to be able to understand questions and answer truthfully.
- After each witness has been examined, the other side will have an opportunity to cross-examine the witness. Keep your answers short and truthful, and do not be afraid to admit that you do not know an answer.
Comply with the court's orders.At the conclusion of the hearing, the judge may make a custody determination, or he or she may decide that additional information is needed. If this is the case, the court may order a child custody evaluation, during which an independent evaluator will interview the parties, the child, and friends and family; and visit the parties' homes. The evaluator may also schedule psychological testing.
- If the court orders a custody evaluation, the clerk will set another hearing date. Comply with the interviews and home visits, then return to court on the hearing date for the judge's ruling on your custody petition.
QuestionIf I have won a custody order but the other parent refuses to surrender the child, what should I do?wikiHow ContributorCommunity AnswerCall the police and call your lawyer. The other parent will be punished for this and may be required to pay your legal fees as well.Thanks!
QuestionI haven't gone to determine custody but I'm the non-custodial parent. Does that mean if I get my kids from school I might face charges?Skooter1504Community AnswerYes, if the custodial parent presses charges, or if you both haven't agreed upon this arrangement. If you have agreed upon it, however, then you should be fine.Thanks!
QuestionIf I had a wild past, but I cleaned up my act over three years ago, can the father prove me unfit?wikiHow ContributorCommunity AnswerThe events in question must have happened after you had your child. If they did happen while you had the child, then make sure you do your best to prove you've changed, i.e. counseling, parenting classes, frequent drug/alcohol tests, etc.Thanks!
QuestionWhat can I do if my grandchildren are not being cared for?wikiHow ContributorCommunity AnswerCall Child Protective Services and get evidence through text, visual recordings or voice recordings, and photos.Thanks!
QuestionAt what age can children tell a judge that they want to live with someone other than their parent?wikiHow ContributorCommunity AnswerIn most states, children must be 16 to be emancipated, while other states such as New Hampshire do not allow emancipation. However, children of any age who wish to live with a foster family can appeal to a judge or child services, who will determine whether their home is unsafe.Thanks!
QuestionHow can I get custody of my child if my child is with an unfit mother?wikiHow ContributorCommunity AnswerContact your local representatives from the Division of Family and Children Services (DFCS). They can do a welfare check on the child and remove them from the home if they feel the child is unsafe.Thanks!
QuestionIf the other parent is out of control and threatening, what do I do?wikiHow ContributorCommunity AnswerCollect record of this. Keep video interactions, keep text messages, and prove that this is happening.Thanks!
QuestionIf a young child's mother is proven to do drugs and is mentally unstable, can she be proven unfit?wikiHow ContributorCommunity AnswerA mother can be proven unfit, but it takes a lot of evidence. You need an attorney to petition the court and must show adequate proof that the mother is not fit.Thanks!
QuestionI have an issue with a grandparent saying she's gonna file for temporary Custody of my son if I don't sign a private paper stating she can have custody of him till my bf and I fix our crap. I have nothing legally against me making me unfit. Does she have any rights to take my child?Skooter1504Community AnswerIf you aren't legally unfit, and she can't get any proof, she has no basis to take you to court. However, she could call child protective services and get them involved in your life.Thanks!
QuestionIf both parents are deemed unfit, who would get the baby?wikiHow ContributorCommunity AnswerThe baby might go to another relative if one is fit and available, like a grandparent, aunt, uncle, etc. or the judge will turn the baby over to social services who will find a suitable foster family.Thanks!
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