Ways a Parent Can Lose Custody of Their Child

A parent’s right to custody of their child is one of the most fundamentally protected rights under the United States Constitution and under every State Constitution. It is right up there with the freedom of religion, the freedom of speech, Due Process, and the right to marry. One would think, then, that it would be extremely difficult for a parent to lose that right. However, there are many ways a parent can lose custody of their child.

There are basically two contexts in which a parent’s right to custody may be disputed and taken away: divorce and state intervention. For the most part, the reasons why a parent might lose custody to the State (abuse, neglect, or abandonment) are also reasons why a parent might lose custody to the other parent after a divorce. 

What Custody Rights Does a Parent Have In Their Child?

There are two types of custody that divorcing parents may dispute: legal custody and physical custody.

Legal custody gives a parent the legal right to act on the child’s behalf and make important legal decisions on behalf of the child, including the following: 

  • Consenting to medical care;      
  • Practicing religion; 
  • Enrolling in school and making educational decisions; 
  • Obtaining legal documents for the child (birth certificate, medical records); 
  • Consenting to adoption; and
  • Raising the child as they see fit

Physical custody gives a parent the right to the physical care and control of the child. If a parent who has physical custody of their child chooses, they could prevent or exclude other third parties from associating with the child.

Why Would A Parent Lose Custody After A Divorce?

If divorcing parents agree on how to share custody of their child and the court accepts their agreement, then the court will issue an order of custody adopting the agreed parenting plan. The parents then have to follow that plan. If the parents cannot agree on custody, then the court will decide what custody arrangement satisfies “the best interest of the child.”

Every state has laws that determine how a court should decide “the best interest of the child” when two parents divorce. Most states prefer for the parents to share legal and physical custody of the child equally after a divorce. It is only a preference, however. If the court determines that shared custody is not “in the best interest of the child,” then the court is not required to order it. 

Modifying Custody (Change of Circumstances) 

After an original custody order is in place, either party may petition the court to change the original custody order. This is called a “petition to modify custody.”

When a court considers whether it is in the best interest of the child to modify custody, it does not apply a rebuttable presumption. Instead, the court will keep the original order of custody in place unless the parent seeking to modify custody demonstrates “a substantial and material change of circumstances” from the original custody arrangement.

To show a substantial and material change of circumstance from what the court previously determined was in the best interest of the child is a weighty burden, especially when a parent is asking the court for sole custody, even if only temporarily. If the parent loses custody of their child permanently, this is called “terminating parent rights.” Once a parent’s rights are terminated, they cannot seek to modify custody again to get their parental rights back.  

A Child Custody Lawyer Can Help if a Parent Is “Unfit”

Here are some of the behaviors that may constitute unfitness or be considered in determining unfitness:  

  • Domestic violence; 
  • Sexual violence;
  • Abuse;
  • Abandonment;
  • Neglect;
  • Conviction of certain crimes;
  • Sex offender status;
  • Endangering the welfare of a child (education or health);
  • Failing to facilitate and encourage a close and continuing parent-child relationship with the other parent;
  • Failure to assume parental responsibilities;
  • Failure to determine, consider, and act upon the needs of the child;
  • Failure to provide stability and continuity in the home environment;
  • Moral unfitness;
  • Inactivity in the child’s life (knowing the child’s friends, teachers, and medical care providers); 
  • Failure to provide consistent routine (homework, school, bedtime) and discipline; 
  • Failure to communicate with the other parent about the child’s needs;
  • Lack of involvement in the child’s school and extracurricular activities;
  • Inability to provide an environment free of substance abuse;
  • Failure to protect the child from the ongoing custody litigation;
  • Making disparaging comments about the other parent to the child;
  • Failure to satisfy the child’s developmental needs; and
  • Failure to honor the existing time-sharing plan

A parent may be shown to be unfit or unable to share custody of their child when they become a detriment to the child or place the child in imminent risk of harm. 

A parent may lose custody of their child if they are found to be unfit. These cases are complex and often require the help of a skilled child custody lawyer.

Contact Our Child Custody Law Firm in Orlando, FL

Contact the experienced Orlando child custody lawyers at McMichen, Cinami & Demps today for legal assistance. Contact our Orlando, FL office at (407) 898-2161 to schedule a free consultation.

McMichen, Cinami & Demps – Orlando Office
1500 E Concord St
Orlando, FL 32803