Denying custody is generally viewed as a drastic step but, depending on the circumstances, possibly a justified one. Often these situations involve a parent who cannot care for and make decisions for a child. They might be incapable of caring for themselves due to a severe physical or psychological illness, substance abuse, or involvement in criminal activity. There is a legal presumption that a child should have both parents in their life, but that can be overcome with evidence if it is not in the child’s best interests.
What is Custody?
There are different types of child custody. The status of each can be determined by the parents’ agreement (subject to a judge’s approval) or court order:
- Legal: This is the ability to make crucial decisions for a child (legal, educational, health, and other issues impacting their fundamental well-being). Legal custody is either shared or one parent has it. It is not split based on the subject to be decided, such as one parent deciding on issues related to education while the other is in charge of healthcare.
- Physical: The right to have your child live with or spend time with you. This could include sole, primary (the child lives primarily with you), shared, or partial custody.
Visitation allows a parent to spend time with a child but not have legal or physical custody. Visiting can be supervised by a third party if a parent is especially troubled. It must be an extreme situation for a judge to deny child custody and visitation to a parent. A parent unable or unwilling to support a child may voluntarily give up these rights.
How Does a Court Decide Who Should Get What Kind of Custody?
When deciding child custody, a court determines what is in “the best interest of the child” and creates an order to accomplish that. There is a presumption both parents should share legal custody as long as both are considered competent caregivers.
What Are Some Reasons a Parent Should Not Have Child Custody?
This issue can arise during an initial custody dispute or after a custody order goes into effect. If conditions change after the order is in place and you fear for your child’s well-being, you can request the court modify the order, or if it is an emergency, you can file a petition for special relief.
If you can show a risk of imminent harm to your child, issues that may persuade a judge to grant you sole physical and legal custody include:
- Substance abuse: Simply having this problem may not be enough to deprive a parent of custody rights. If this is an issue, both parents may face drug tests, and if one tests positive, they will probably be required to undergo periodic testing and treatment.
- Serious, untreated mental health problems: If the parent can show they are being treated and following their healthcare provider’s instructions, they may maintain custody. If they refuse to be seen for a possible psychological issue and or will not accept treatment, they risk losing custody.
- Domestic violence: If a parent’s history of abuse is documented with medical or psychological records, police reports, criminal convictions, or child welfare reports, the parent may lose custody rights. These rights may be regained if they show they are in treatment and no longer engage in these episodes.
- Debilitating physical disabilities: If your spouse is severely disabled and that seriously affects them physically and mentally, they may be denied custody.
Like every legal issue, evidence is critical. No matter the problem, it must be documented with notes, witness testimony, photos, and videos. The more mature your child is, the more impact their testimony will have. You should keep evidence securely away from the other parent and your children, physically and or electronically.
Records from law enforcement and healthcare professionals are also critical. Both sides may hire experts to give their opinions if the issue is physical or psychological. The same may be true of the alleged emotional or psychological impacts on your child.
False Claims Could Backfire
If you make allegations but lack evidence to support your claims, the other parent could accuse you of abusing your child by needlessly putting them through the dispute and abusing the court process. As a result, your ability to maintain custody could be challenged.
The lawyers at Karen Ann Ulmer, P.C., can protect you and your children if the other parent is unfit to be in their lives or you are facing baseless claims that you should not have custody. Contact us today to see how we can help.