Tired dad taking a nap in a messy home. Parenthood.

Child custody disputes can be an emotional issue for many parents who are separated or divorced. In contentious cases, a parent might try to argue that the other is unfit to have custody of the child. While no parent is perfect, it is uncommon for a parent to be completely denied their custody rights. However, if the court deems a parent is “unfit,” a judge may limit the interaction time they have with the child.

What is an Unfit Parent Under California Law?

Under California law, courts apply certain criteria when determining if a parent is unfit to have child custody. Critically, bad parenting is not the same as being an “unfit” parent. The definition of an unfit parent is one who fails to provide the proper care, support, and guidance to their children. They may also put the child’s health, safety, or welfare at risk.

Courts in California will not take the conduct of an unfit parent lightly. Specifically, a judge may consider whether the following circumstances exist in deciding whether a parent is unfit:

  • History of abuse or neglect
  • Unaddressed mental illness
  • Domestic violence
  • Substance abuse issues
  • Incarceration

Only in very rare cases do courts ever terminate parental rights. If evidence shows that a child’s welfare would be at risk if they were to spend time with a parent, a judge might order supervised visitation. In such cases, a neutral third party would have to be present while the child spends time with the parent in order to protect them from conditions that might be dangerous or place their welfare at risk. A court might also order a child custody evaluation to help decide what is in the best interests of the child.

When Would a Court Order a Child Custody Evaluation?

A child custody evaluation can be ordered by the court in cases where there are concerns about the child’s welfare and whether a parent is unfit. For instance, if there are issues such as domestic violence, substance abuse, mental illness, or questionable parenting, an investigation into the family’s circumstances may be necessary to determine whether a child is at risk — and what the best custody arrangement is. This type of evaluation may be ordered by the court by its own motion or by the motion of any party.

A custody evaluation usually involves interviews with the children, parents, and others who know the family. Psychological tests, home visits, health records, and other relevant sources may also be considered as part of the evaluation. Some evaluations might also require more than one evaluator or a subject expert.

Once the custody evaluator has concluded their assessment of the family’s situation, they will compile their findings into a confidential report which includes their recommendation regarding a custody arrangement. A court will look at a variety of factors regarding the evaluator’s recommendation and findings, including the involvement of the parent in the child’s life, how well they attend to the child’s needs, and whether they set age-appropriate limits for the child. The judge will also consider the child’s feelings toward the parent, how both parents handle conflict with each other, and a history of abuse or neglect.

Can You Modify a Parenting Plan in Cases Involving an Unfit Parent?

To request a change to a custody arrangement, a parent must have valid legal grounds to do so. While you might think your ex is a bad parent, it’s important to keep in mind that this doesn’t necessarily mean a court will find that they are an “unfit” parent. For example, if your ex doesn’t emphasize homework as much as you would like, it doesn’t mean they are engaging in abusive behavior. Nevertheless, you might consider revisiting your parenting plan and modifying the custody arrangement in cases such as these.

With a parenting plan, you can designate decision-making authority for things like healthcare, education, religious upbringing, and other day-to-day matters that affect the child. You can renegotiate a custody arrangement with your child’s other parent outside of court at any time, but most parents revisit portions of their parenting plan approximately every three years. Importantly, a parent cannot change an existing parenting plan on their own accord. Even if a verbal agreement is reached, the modification must be in writing and ordered by the court to be legally binding.

Mediation can often help parents reach a modification agreement outside of court. However, if both parents do not consent to the modification, it may be necessary to bring the case before a judge. A court will typically only order a modification if a parent can show that there has been a significant change of circumstances since the original order was entered — and that a modification is in the best interests of the child.

Contact an Experienced Fresno Child Custody Attorney

Child custody issues can be complex and it’s vital to have knowledgeable counsel by your side who will work to safeguard your rights and ensure the best interests of your children are met. With more than 20 years of experience, the Law Offices of Rick D. Banks offers clients reliable representation and compassionate counsel for a wide variety of family law matters — including child custody matters. To schedule a no-obligation consultation, call (559) 222-4891.

Categories: Child Custody