Divorce is a typically a very stressful and life-changing process that has impacts the lives of all family members. When sensitive child custody issues need to be determined, the stress level increases and spouses often begin swearing and making claims they will gain full custody of the children by any means necessary. It's not uncommon for one spouse to announce to anyone who will listen the other is “unfit” to be a parent. What you spouse claims and might actually believe is not near as important as what the Los Angeles County family law court believes.
Case after case it has been shown that judges who determine child custody matters are never anxious to just sever a parent-child relationship. When a spouse is seeking a court order to declare you an unfit parent, there must be significant evidence. In other words, one parent's claims and accusations are simply not sufficient.
There must be substantial proof to back up the claims. During a divorce, parents will frequently disagree about whether a particular parenting tactic is best for their children. Divorce often creates a sense of mistrust between spouses that will affect their willingness to trust the other on their parenting strategy. At the request of one parent or an order of the court, a child custody evaluation may be performed.
These evaluations are designed to determine if granting one or both parents custody is in the best interest of the child or does it place the child at risk in any way. The child custody evaluator considers many different factors to make a determination. These is no single simple answer in determining whether a parent is unfit. While some factors are obvious, such as physical abuse or addiction at a level where the addicted parent can't function effectively, the real test is ALWAYS what is in the best interests of the child.
Your child certainly could benefit by limiting the conflict between the parents by working with a professional to structure a good parenting plan that protects the child from the limitations of either parent and focuses on their safety. It's not wise for one parent to laser focus on what they believe is “unfit,” rather stay focused on what is truly in the best interest of their child.
Seek Legal Guidance From Our Child Custody Lawyers
If you are seeking a divorce and child custody issues need to be determined, you need to consult with the Los Angeles divorce and family law attorneys at Furman & Zavatsky LLP. Our lawyers need to thoroughly review the details of your claims the other parent is unfit. Remember, allegations are not enough to be awarded sole custody. We understand you are going through a stressful event and probably need some legal guidance.
It's important to note family court judges view parental fitness as an integral part of a child custody decision. In order for them to determine what is in the best interests of the child, it will include reviewing the status of both parents. If it can be proven one parent is more stable than the other, judges could award primary custody to that parent. Parental fitness is frequently a mechanism used in child custody battles.
There are some generally accepted grounds a parent can use against the other to show they are unfit. These include abuse, neglect, domestic violence, mental illness, substance abuse, incarceration, among other factors. It's important to understand the difference between physical and legal child custody in California. Let's take a closer review of the main factors below.
Factors Determining Whether a Parent is Unfit
During a divorce, a court may order a 730 child custody evaluation to determine if a parent is unfit. This evaluation is used to determine if a child is at risk, or if it is in the child's best interest for one parent to have sole custody. There are many factors that the court uses to make this determination. Those factors are as follows:
- The level of involvement in the child's life in the past – How involved in the child's life has the parent been since the child was born? Are they familiar with the child's daily routine, life at school, or friends? The evaluator will take into account who has been the primary caretaker in the child's life and use this information to inform their decision. A parent who has been more involved with the child as compared to a parent who is not involved will more likely be awarded custody of the child.
- How well the parent understands and attends to the child's needs – Is the parent involved in the child's life, and if so, do they consider their child's needs when making decisions? Do they communicate an understanding of those needs to the child and take action to meet those needs? A parent who understands his or her child's needs will be more likely to get custody.
- The child's feelings toward the parent – Does the child fear the parent? Are they comfortable around them? Do they demonstrate affection or a desire to be with the parent? Prior to age 14, the court considers the child's feelings and preference towards the parent in granting custody. Once the child is 14, the court takes into account the minor's desire for how much time is spent with each parent.
- Limit-setting that is age-appropriate – Does the parent set limits that are age-appropriate for their child? For instance, do they have curfew or driving rules in place for their teenager? Do they have a bedtime or safety rules in place for their toddler? Parents who demonstrate responsible parenting are more likely to be awarded custody of the child.
- How the parent handles conflict with the other parent – How has the parent been managing the divorce and custody proceedings? What were their conflict resolution skills prior to that? Are their actions constructive? A parent who seeks to minimize conflict is generally better received by the court.
- Evidence of child abuse – Is there any reason to believe the parent has a history of child abuse, either with the child in question or other children? It goes without saying that child abuse will be a bar to child custody.
- History of domestic violence – Have any charges been filed in the past related to violence in the household? Is there a history or restraining orders or protective orders? Is there reason to believe that there might be unaddressed issues with domestic violence in the household? Domestic violence will also very likely be a bar to child custody, particularly if it is directed toward the child.
- History of substance abuse – Does the parent currently have a problem with substance abuse or have they in the past? Are they seeking treatment of any kind? Any kind of substance abuse threatens the welfare of the child and is taken seriously during the evaluation.
- Mental illness – Does the parent have a mental illness that threatens the welfare of the child? Are they in treatment for it? Mental illness will likely not affect custody decisions if it does not threaten the child's well-being.
In addition to observing the child with the parents, the evaluator may also interview teachers, therapists, or any other adults involved in the child's life. Evaluators may not give preference to either gender, nor consider race, sexual orientation, religion, or the financial status of either parent when determining whether a parent is unfit. See related: Child custody evaluation information sheet.
Call our Los Angeles Child Custody Attorneys to Discuss Your Options
If you or your child's other parent are seeking a child custody evaluation during which one or both of you may be deemed unfit, there are many factors that must be considered when the court makes the ultimate determination as to how to award custody of your minor children. When your child's welfare is on the line, it is essential that you speak to experienced attorneys who can ensure that your rights are advocated for.
Call the Los Angeles divorce and family law lawyers at Furman & Zavatsky LLP at 818-528-3471 or contact us online to make sure your custody rights are protected. Our law firm is located at 15821 Ventura Blvd #690 Encino, CA 91436.