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Proving a Parent is Unfit in a Child Custody Case

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Proving a parent is unfit in a child custody case is not easy. Here are a few examples of how to gather evidence when dealing with substance abuse, child abuse or neglect.

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*This video recording is for educational purposes only and should not be considered as the rendering of legal advice. The viewing of this recording does not create an attorney-client relationship. An attorney-client relationship is only formed when you have signed an engagement agreement. We cannot guarantee results. Past results do not guarantee future results. Consult with a licensed attorney for information regarding the specifics of your case.

I’ve also included a real case where I represented a father with 2 children where the mother was addicted to methamphetamines.

If you are seeking sole custody of your child one way to do this is to prove that the other parent is unfit. Proving unfitness of a parent is not always easy to do. In my practice I have been able to prove unfitness of a parent by proving evidence of drug abuse, alcohol abuse, alcoholism, etc.

This includes both illegal drugs and prescription drugs. If the other parent has a history of drug abuse for a significant number of years this should be brought before the court. Also important is whether or not they are currently in a drug or alcohol treatment program. Have they been through treatment or rehab but continue to relapse?

However they don’t have to have a drug or alcohol problem for a number of years. If you can prove that their is drug or alcohol abuse going on presently this is also taken into consideration.

There are a things you can do to help prove drug abuse in a custody case:

1. Request ongoing court ordered drug tests in your custody case.
A failed drug test in a custody case can be a good indication of drug addiction in the parent.

2. Be required to get a drug screening and be evaluated for a drug treatment program at treatment center. This involves being interviewed and assessed on how significant the substance abuse is. The center can then recommend a treatment protocol to follow. If the other parent fails to follow the treatment program this is very good for your case.

Another Way to Show that a parent is unfit is to show evidence of child abuse or child neglect. Allegations of child abuse are very serious, so you must be prepared to back it up with proof. Abuse includes physical abuse, emotional abuse

Some examples of child neglect can be not providing meals when they should, skipping meals,, not monitoring the child doing homework, missing school, being left alone at house, if they go to school tired or dirty, or without lunches, etc. If you can show a pattern of neglect it can show the parent is neglectful and should not have custody or parenting time.

Also, if there is evidence of child abuse such as police reports, criminal conviction, restraining or protection orders they are good pieces of evidence to provide the judge in your custody battle. Now keep in mind that Just because the other parent has a substance abuse problem it does not necessarily mean they are unfit.

The judge will look at many factors which are called the ‘Best Interest of the Child’ factors which by law the court has to consider all as a whole when making a decision in a custody case. So I would not hang my hat on just this one factor. It might be that the judge not give you sole custody but reduce the parenting time of the other parent.

These are just a few examples to show unfitness of a parent in custody case. Substance Abuse and Neglect, Abuse are some very common issues that come through my office and which I have been successful in proving and securing sole custody of a child.

Wendy Hernandez is founder of ‘Command the Courtroom’ and a family law attorney in Phoenix Arizona.

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  • marissa sarace

    Are text messages ammissable in court? And how serious do they take them?.. my sons father is drinking heavily while caring for our 3 year old. He is driving with no license with our child in his truck and just got a DUI, he has failed to pass his breathalyzers with probation.. I am also recovering addict but haven’t used is years but I am on methadone maintenance program, I have no legal problems what so ever.. is there a way that I can put in place that he has to take breathalyzers every hour or so while my son is in his care?

  • Jay Bee

    What if a parent was arrested with a large amount of drugs and money with three of her four children? Two of them being under the age of four at the time. If she manages to get off with a cop out guilty plea of disorderly conduct. There also being two male adults in the vehicle who take the charges so she doesn't get in trouble, even though she knew exactly what was in the her vehicle. It all being less than a year ago, what are my odds of winning a custody battle and getting my 2 children from her? Even though acs were extremely bias and never even officially took them from her and assisted in her actually keeping the two toddlers in her home.

  • Leggy April Alabama

    I am I a fairly nasty divorce. I have mental illnesses that I see a Psychiatrist when meds need to be changed. I see his Nurse Practitioner every 3 months because I've been on pretty much the same meds for 3 years. I have 1 5 day Psych Ward Stay and I had myself admitted. I have BiPolar 1, Borderline Personality Disorder, Generalized Anxiety Disorder and PTSD. I have to nap some while my son is in school. I can take just as good care of as I did for 12 years. My attorney seems focused on my mental illness, the meds I take and all doctors I've seen for 5 years. I am on disability so I'm at home with him. He would not be alone for 4 hours. I've seen my son with my soon to be ex present. My son is with him and my son's grandparents. They are brainwashing him.
    He won't come here alone, he doesn't answer my texts because my only contact is through his dad.
    I have videos of him verbally abusing me, he threatened me with death on numerous occasions. He hasn't touched me in the last 6 years of our marriage, stayed gone all or most of the weekend. Wouldn't tell me where and cut off his location. That's abandonment of marriage. I have videos of me finding weed, a pipe and bottles of Viagra that were filled and paid in cash, not our account. He had a DUI and I came home with a bill for $400 from a dermatologist. I called and he has. Genital Warts from someone. Not me cause he had not touched me and I have the diagnosis doctor notes. We don't sleep in the same room. My son slept with him. I made a video of the bedrooms and bathroom. It made me sick. I had back surgery and couldn't walk up there. They ruined the carpet. Pee on the wall, floor, molded on the base. The smell was nauseating. Still they don't care. Only about my mental illnesses. I'm gonna lose my son because i inherited BiPolar Disorder and was sexually abused 10 years. What do I need to do?

  • angii_f_baybii

    What should you do when the mother is an addict? And she’s been one for years but has never gotten caught for it to show history? How do you prove substance abuse when their is hardly ever any evidence? All we have one her is proof of her inability to stay in one place, (child has been bounced from home to home school to school) She was charged in 2017 for paraphernalia and illegal substance. But we need more proof ? Bcuz it is a closed case and won’t hold in court. All our witnesses are being subjected to “hear-say”. What else can we do ?? We have a GAL that was just assigned to our case

  • mickey1758

    My ex spouse and his mother were alcoholics. Um based on hear say false allegations and had used the older child as their pawn to win custody! later on came parental alienation years after the divorce the younger one who was 4 at the time of divorce is 15 years old in a CPS child service report this child repeats the details she couldn't possibly of known from the divorce on top of saying to the social worker that her father and grandma are both Alcoholics! The Child was still left in my ex-spouse care! it is not so that just because you show the court a parent is unfit that child will be removed. my ex- spouse got away with not keeping the older child in school throughout the whole time in his care.The Court did not care allowed my ex-spouse to get away with how he neglecting my daughter she turn 18 and now she suffers has no real education there is no justice for her!!!!!!!!! The court then worn him to put and keep the younger child in school or they would remove that child. so it doesn't matter if you show a parent is unfit to the court when the judge won't listen then later help with alienation! well parental alienation is child abuse!!!!!

  • Jane Smith

    I was not able to get him tested yet he has not only history of drug and alcohol abuse that resulted in termination of his parental rights by the State to his first two children but also I proved his now drug and alcohol no one test him bcs he is tribal with 1 mil annual income in bias court and yes history of violent criminal domestic violence. So it goes case by case.

  • Angel Pagan

    How about When your mother leaves the children alone from about 6 to 7 hours once every two weeks or once a week father has police report stating that the chosen one I’m home alone in the adult supervision 13-year-old daughter 10-year-old,son five-year-old son and a two-year-old son

  • Kim Zell/Rademacher

    I already had been given custody, and because he had an attorney and I didn't, the judge didn't want to hear anything I said and was quite rude. I was not deemed unfit, and I never even got a fitness hearing or analysis. I was just stripped of all my rights, and in my opinion, it was because my ex is military and they go hand and hand with the police and judical Dept, so I was nothing to them.
    Time and place, and it's coming up I can feel it. I'm not going to stick my head in the sand

  • Jennifer Vang

    Why is all this advice always about unfit mothers or taking custody from mothers? I was screwed by my abusive ex who used the system against me when my son and I were moving out of state. My ex actually lied for months about being ok with it, and instead used a number of tricks and lies to get our son so he wouldn’t have to pay child custody.

  • D

    Where is a guardian ad litem on the case the judge doesn't look at anything the guardian ad litem goes before a judge and says which parent she thinks should get the Kid and the judge says are you sure and she says yes so they sign the paperwork and me and my ex were off I got the kid so when is the judge hear anything this is what I want to know cuz I never even got to speak to a judge

  • Melanie Peoples

    Hi. I appreciate your videos, they help a lot. I don’t have thousands of dollars for a custody lawyer and my child’s father is not responsible with her at all. He drinks and drugs and he talks to her like she is an adult. She is 6 and he has left her home alone! So how would I mention this in court?

  • Slothy

    Be a women. Im joking just my experience my ex is a heroin addict ive never used and work she has full custody she has no home lives at her parents I have my own place. I pay alot each month and half the time I'm hearing she spent it on her hair or clothes. Shit is a joke boston court system is a joke.

  • Madi

    I’m 12 and I absolutely hate my mom because she hates me and only loves my brother. She openly told me she only wanted a boy. She also tells my brother I love you every night but I’ve never been told I love you before. She constantly rude to me and when I was a little younger she would slap me with a belt. One time my older sister was asleep and she slapped me with a belt then shut the door in the closet so no one could hear me. My dad loves me but he has a felony for something he did 10 years ago and he has changed but … idk 🙁

  • Arturo Hernandez

    Hi I live in California I already have full soul custody since my daughter was 1 and a half we were both CPS involved 2 time both times she didn't do all that she was souped to do first she had over nights every other weekend and 3 hours a week. Now the second time we were CPS involved we were in and argument were she staved me with a wine bottle opener she was in jail for it she didn't do none of the classes or therapy that CPS wanted her to do so she was denied services I did everything they asked from me and got our daughter back from CPS after almost 3 months. Last November the case was closed I got full custody and she only got 2 hours a week supervised but now recently she served me with court papers were she states that she want more tome and overnights and that she completed clases and therapy and substance abuse since she is and alcoholic, well during that time she was doing all that she was drunk calling me at 20:30 am and 3:30am and texting me drunk saying crazy stuff and I have all those text and call registered in my cell phone can I use them in court.

  • Grace Kelly

    My ex only abuses others. He is a covert narc and will stop at nothing to lie and record etc.. he has already went to the police and it fell through. He loves the courts and has out lawyered me! A very dangerous man

  • Meagen Chamblee

    My child's father is addicted to methamphetamines. I have tried to be civil and give him visitations with our child inside my home once every Sunday where I can supervise the visit to make sure she is safe. When he comes over 90% of the time he is being manipulative, emotionally or mentally abusive. He blames me for everything. He helps out when its convenient for him. I'm tired of the abuse and I'm so scared to take this to court because what if they hand over my child to him for overnight stays? I dont even know where or who he lives with. He says he room shares with a bunch of guys. He also doesn't have an adequate vehicle that can transport carseats. His truck is a 2 seater. He has never been physical with my kid but I dont trust him alone with her. He nods out at my house all the time falling asleep on the couch when he should be spending time with her. I feel so helpless. I feel like it's okay for him to do whatever he wants, say whatever he wants and I'm forced to deal with his destructive behavior every week while raising my child by myself Monday-Saturday.

  • Myron Peyton

    child support wants me to prove that my child lives with me and he is only 2…but I'm not on his birth certificate…I managed to get him under my health insurance…but I don't have school records and he hasn't been to the doctor on my insurance yet…Can't find the receipts for all the stuff I buy him daily…idk what to do

  • EmilyAnne Mccord

    I am fighting for custody of my grandson. His mom died March 29th and they lived with me. The father had liberal visitation and never tried to see the child. He also never give a dime in child support. The child is scared to death he will be taken from the only home he has ever known. Can the father win?

  • Andrea Kerr

    Just because a child has bruises does not automatically mean their being abused . Sometimes it's because they have fallen or walked into something fell on a toy etc. Sometimes it's due to.brusiing easy I bruise easy and I'm not abused by my partner. People think am I because his ex baby mama was crazy . Hes never hurt me .

  • Kelly Batsch

    Other parent has drug abuse problem for years currently taking methadone which I’m glad she’s getting help I am her biggest supporter. My question is she’s currently in jail we have no set court agreement I feel my daughter should be with me and not the grandmother her mother.

  • OceanSun

    Although I am the primary. We have no longer resided in the same state when we filed divorce and custody. The non custodial parent has not visited our kids in three years. The past years he's gotten arrested twice for DUI. I want to go to the State to visit my family but afraid that he may want to have the kids with him. He's gotten verbally abusive towards myself and physically towards his new wife. No police report was filed so there is no record. Can I still file for soul custody?

  • thor is big chungus

    What about if your dad is an Alki and used to be psychically abusive but now not and the just do it verballie and the kid has thought of suicide and cant sleep at night because he is scared that his dad will do something and his mum is poor like really poor and she is really depressed and the kid cuts himself and has attempted and has still thoughts of suicide what would happen would child service get involved and the kid gets taken away because that kid is me and I'm nervous because I heard something about child service

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