How to Prove a Parent Unfit in Child Custody Cases

By Alisa Stevens

Judges view parental fitness as an integral part of a child custody decision. Determining what is in the best interests of the child includes looking at the status of the parents. If one parent is more stable than the other, judges can decide to award primary custody to that parent. As a result, parental fitness is often a mechanism used in custody battles. Each state has its own set of rules regarding what makes a parent unfit. However, there are some generally accepted grounds that a parent can use to prove the other is unfit. These include abuse, neglect, mental illness, substance abuse and incarceration.

Step 1

Research your state’s criteria for an unfit parent. Generally, these statutes are located in the family or juvenile codes. Visit your state court website or an online service provider to review the requirements in your state.

Step 2

Gather evidence proving that the parent is unfit. Evidence admissible in court includes photographs, video and audio files of physical or verbal abuse, medical files documenting injuries, the parent’s criminal record and direct correspondence between the petitioner and the other parent. The evidence must be strong and unbiased. Courts tend to protect the parent-child relationship and will not rule a parent unfit without concrete evidence.

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Step 3

Schedule an appointment with a medical and mental health professional to evaluate your child. Depending upon any current custody provisions, this step may need to wait until the court-ordered evaluation. In some cases, consent by both parents may be necessary for such an evaluation.

Step 4

Download the appropriate forms from the appropriate state court website or an online documentation provider. State child custody laws provide strict rules regarding what court holds jurisdiction over these matters. You will need either a Petition for Custody form or a Motion to Modify Child Custody order, depending on whether or not an order is currently in place.

Step 5

Complete the forms. General information includes parental contact information, related court cases, child’s name, birth date and current living arrangement and reason for petition or modification. Include the grounds for unfitness and the evidence complied to substantiate your claim. Sign the form and make a copy for your records.

Step 6

File the forms and any attachments with the appropriate court. Check your state regulations to determine whether this will be a family or juvenile court in the county where the child resides or some other requirement. Jurisdiction over child custody cases varies from state to state. If it is a petition for modification, file the papers with the original court. The clerk will assign a case number.

Step 7

Serve the documents to the other parent. Review the service of process rules for the relevant court. Service rules vary by jurisdiction, but generally require in-person service by law enforcement, a private process server or an adult over 18 years of age and not a party to the suit. Provide proof of services form to the individual to complete. Return the proof of service form to the court clerk.

Step 8

Attend the hearing. Explain why you requested the hearing and provide the reasons for the petition. Be clear and concise. Provide original copies of the evidence proving your unfit claim. Bring the original copies of the evidence you gathered against the parent that supports your claim. This includes any witness testimony, school or medical records substantiating your claim that the parent is unfit and that it is not in the child’s best interest to remain in her care. After hearing both sides, the court may rule or order a child custody evaluation. The evaluation includes a thorough review of both parents and the child. The evaluator is an independent party who will assess both home environments, interview friends and family and schedule psychological testing for all parties involved.

Step 9

Participate in the court-ordered child custody evaluation, if necessary.

Step 10

Attend the hearing for the judge’s ruling.

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How to File for Child Custody in California


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