How to Prove a Parent Unfit in Child Custody Cases

By Travis Gray, J.D.

How to Prove a Parent Unfit in Child Custody Cases

By Travis Gray, J.D.

It is the job of the judge in your divorce case to determine whether you and your soon-to-be ex-spouse are fit to be parents. Determining whether a parent is fit or not is a critical part of the judge's role and is the deciding factor on how the divorce decree sets out issues of custody and support. While the laws of every state are different, there are some universal guidelines to follow in order to prove a parent is unfit. Read on below for the common steps in this process.

Sad little girl holding a teddy bear as her parents argue in the background

1. Determine if the parent is unfit.

Before you take any steps to have a court declare the other parent unfit, it is important that you are certain in your belief that the other parent is unfit. It is easy to get wrapped up in the stress of a divorce, but making a false or reckless accusation will do more harm than good. However, if you feel strongly that the other parent is unfit, it is important that you make the court aware.

2. Review the laws of your state.

Every state has a different standard for what constitutes an unfit parent. You need to do your research and keep these standards in mind as you build your argument that the other parent is unfit.

3. Gather evidence.

To prove your case at the hearing, you need evidence. The allegations alone aren't enough, and the petition that you will file with the court must spell out the reasons the court should declare your ex-spouse unfit. Evidence can include anything that supports your case. It can involve testimony from witnesses regarding your ex-spouse's behavior. It can also include video of an incident or physical evidence that proves your point. You should gather as much evidence as you can find before you proceed with filing the petition to request a change in custody.

4. Complete and file the necessary paperwork.

You can't simply ask the judge to change the custody agreement. You must file the legal forms required in your state. The procedure varies by state, and filing the wrong forms or making mistakes on the paperwork could drag this process out. The risk of a technicality costing you is real, which is why seeking divorce help may be in your best interest.

5. Serve the paperwork.

It's not enough to prepare and file the petition seeking to declare the other parent unfit. Once you have filed the petition, you need to legally provide, or serve, the paperwork to the other parent. They are entitled to have notice of the filing and subsequent hearing in order to give them a chance to defend themselves from your accusations.

6. Present your evidence in court.

All of the work in the previous steps leads up to the hearing. At the hearing, both parties have the chance to address the judge and offer their own evidence. This is when you can put the evidence you gathered to use. Once you have made your case, your ex-spouse has a chance to rebut your claims using similar types of evidence. Depending on the nature of your allegations, the court may require that independent experts evaluate your children before the judge makes a decision.

7. Follow the court's order.

Once the hearing is over, the judge makes a decision. The judge may announce the decision immediately or you might get it in the mail within a few days. No matter the decision, you must abide by the ruling of the court.

This process may seem complicated, but by following this guide and doing your homework, you can bring your concerns in front of the court. If the court rules in your favor, you will be able to remove your children from a potentially dangerous situation by placing them in your sole custody.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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