What Factors Do Family Courts Use to Decide if a Parent is Unfit?

Hossein Berenji, May 26, 2021

 What Factors Do Family Courts Use to Decide if a Parent is Unfit?In most cases, the court prefers to award joint custody because children benefit from spending as much time with each parent as possible. When parents can work together to develop a parenting plan that benefits the entire family, the parents and the children are generally happier with the situation. However, what happens when one parent is unfit?

What Does it Mean to be an Unfit Parent?

What Does it Mean to be an Unfit Parent?

You do not need to be a perfect parent to have custody of your child. Courts recognize that some individuals may be better at parenting than other individuals. The court does not penalize parents for being imperfect.

Judges consider the child’s best interests to resolve custody cases. However, that consideration is weighed against parental rights. A judge is not likely to deny custody or revoke parental rights if a parent is trying their best.

However, if a parent’s conduct could place a child in danger or cause them emotional or mental harm, the court might find that the parent is unfit. Being an unfit parent means that you are incapable of caring for your child and ensuring your child’s welfare.

Factors Judges Use to Determine if a Parent is Unfit

Factors Judges Use to Determine if a Parent is Unfit

When deciding whether a parent is unfit to have custody of a child, a judge considers the following factors and circumstances:

  • The safety, health, and welfare of the child
  • Evidence of a history of abuse or violence against the child, another child, the child’s other parent, or another romantic partner
  • A parent’s history of substance abuse, including drugs and alcohol
  • The amount and nature of contact between the child and each parent

Although Family Code 3011 requires judges to consider the above factors, they may consider all relevant factors to decide whether a parent is fit to have custody. For example, the judge may order a 730 child custody evaluation to assist in their decision.

Things that the evaluator may consider when preparing a report and recommendation for the court include:

  • Whether the parent sets age-appropriate restrictions for activities, television, bedtimes, etc.
  • How well a parent handles conflict with the child and between the child and other individuals
  • If a parent can understand and provide for a child’s needs
  • The parent’s level of involvement in the child’s life
  • A child’s feelings toward each parent
  • Whether a parent has a history of mental illness or instability
  • History of neglect or abandonment
  • Whether the parent obtains medical and dental care for the child
  • A parent’s ability to provide a safe, clean home, including adequate food and clothing for the child
  • Allegations of parental alienation by either parent

Neither the court nor the evaluator has a presumption or preference for either parent. As stated above, custody is often granted jointly to both parents according to the child’s best interest. The court and the child custody evaluator objectively review the information and determine the child’s best interest based on a parent’s fitness to care for the child.

Evidence Used to Prove a Parent is Unfit


Proving a parent is unfit can be difficult. A judge is not likely to strip a parent’s legal rights based on the allegations of the other parent. The parent alleging unfitness must have evidence to substantiate the allegations.

A court-ordered child custody evaluation can be extremely helpful. The evaluator is an independent investigator, so any evidence obtained by the evaluator may be viewed with great authority by the court.

Other evidence that could be used to prove that a parent is unfit might include:

  • Testimony from counselors, therapists, teachers, coaches, and other people who are familiar with specific instances in which the parent displayed unfit behavior
  • School and medical records
  • Police reports detailing domestic violence
  • Photographs and videos of the parent’s home
  • Details of home visits and inspections
  • Criminal records

The evidence proving a parent is unfit depends on the specific allegations made against the parent. A child custody lawyer with experience handling these types of custody cases will guide the parent through the process of gathering evidence and presenting a compelling case to the judge.

A judge may find that the allegations against the parent are unfounded.

If the judge finds that a parent is unfit, the judge may order sole custody to the other parent. Depending on the allegations, the court could order supervised or restricted visitation. In extreme cases, the court could involuntarily terminate the parental rights of an unfit parent.

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