Why Do Parents Lose Custody Cases


Custody Battles Between Equal Parents

Courts prefer that parents agree to a custody order and parenting time schedule. When parents cannot agree, the courts must evaluate the facts of the case and make a determination as to which parent should have physical custody. Although in most states it's possible for a court to award joint physical custody even when a parent objects to that arrangement, as acrimony increases between the parents it becomes less likely that a court will consider joint custody.

When a court finds that two parents are both good parents, but that an arrangement of joint physical custody is not likely to work, the court will consider the children's home environments, the proposed households of each parent, and the parents history when making a decision. In most cases, the outcome will flow from the parents history: the parent who has an established history of acting as the children's primary caregiver is likely to be awarded custody. When one or both parents have children from prior relationships, a court may also consider how its order will affect the children's relationships with their half-siblings, and whether all of the children should live in the same primary family unit.

Factors That Harm a Parent's Effort to Win Primary Custody

When courts evaluate custody cases, their goal is to provide the children with the best available household. They will try to pick a home that is safe, secure and appropriate. Factors that will cause a court to disfavor a parent include:

  • Domestic Violence - Any history of domestic violence, whether or not it occurred in front of the children, is likely to negatively affect a parent's attempt to obtain custody. That effect increases if the domestic violence occurred in the presence of one of the children, or was directed at a child.

  • Incapacity - Even when a parent demonstrates a sincere willingness to act as a primary parent or co-parent, the court may consider whether the parent is able to fulfill that role. Factors such as heavy drug or alcohol use, addiction, poor physical health, and untreated mental health disorders may factor into a court's determination. A parent with a chronic health condition or disability should seek appropriate medical and supportive care, and will benefit from consulting a lawyer if their health is likely to be an issue during a custody dispute.

  • Neglect - A parent who has a history of neglecting the needs of the children will be less likely to be awarded custody. Neglect covers a very broad range of issues, from attending to the children's basic needs and hygiene, to inappropriately leaving the children unattended in a home, car, or public place, to failing to ensure that children attend school.

  • Stability - Courts want children to live in stable homes, so a parent who has a history of frequent relocation, or who lives in a shared residence with frequent changes of housemate,may be at a disadvantage.

  • Moral Fitness - A parent's history of immoral conduct that affects the welfare of the child may be considered by a court. For example, a parent who is caught shoplifting when the children are present puts at risk the chance of being awarded primary custody.

  • Disobedience of Court Orders - Once a court issues a preliminary custody order, if a parent does not comply with the order, that parent sends the court the message that they do not take seriously either the court's orders or the other parent's custody rights.

  • Negativity Toward the Other Parent - Although courts generally understand the anger and arguments that may arise in a custody case, they expect parents to adjust to their new circumstances and to learn to work with each other. Disparagement of the other parent, including online disparagement and angry texts or phone messages, but especially when expressed to the children, can be a significant negative factor in a custody determination.

  • Displays of Anger - A parent who displays an inappropriate level of anger, who displays anger at inappropriate times, or who has outbursts directed at inappropriate people, is at risk of losing custody. A court is likely to remember an angry interruption of court proceedings, and is likely to be influenced by a case worker or custody evaluator's testimony about an inappropriate outburst during a meeting or evaluation.

Additional factors that are normally less significant, but may also affect a court's custody decision, include:

  • Communication Issues - Parents who withhold important information from the other parent, or won't communicate over routine activities or appointments such as school events, doctor's appointments, and extracurricular activities, may cause a court to conclude that they aren't willing or able to work effectively with the other parent.

  • New Relationships - While not universally true, some judges are skeptical of new relationships prior to the finalization of a divorce case, particularly when the children are introduced to the new partner or to a succession of partners.

  • Voluntary Unemployment - Although there are cases in which a parent may appropriately stay at home with a child or children, or may be enrolled in college, absent a good reason not to be employed a parent should seek employment or enroll in school.

  • Unnecessary Calls to the Police - Although in some cases issues arise that warrant police involvement, courts do not like to see the police brought in over routine custody disputes, and the police don't like it either.

  • Work Obligations - A parent whose work requires long hours, frequent travel, or extended absences may be viewed as a less appropriate primary caregiver, as compared to a parent who is more available and more consistently available to care for the children..

  • The Child's Preference - Although a child's preference is normally heard by a court only if the parents agree that the court should consider the child's opinion, if a court finds that the child is old enough to state an informed opinion, the court may consider a child's preferred family unit when making a custody decision..

Whenever a negative factor may be raised in a custody case, which is to say in virtually all cases in which the parents do not agree on issues of custody and parenting time, a parent will benefit from consulting a qualified family lawyer. A lawyer can help form a strategy to avoid having certain issues come up during litigation, and also to address and respond to negative issues that are likely to be raised by the other parent.

Why Do Courts Change Custody

When a parent has received primary custody of the children, that parent is in an excellent position to keep custody. Not only are courts reluctant to change an established custodial environment, judges must normally find a material change in circumstances before a motion to modify custody can even be entertained. Nonetheless, sometimes courts do hear motions to modify custody, and sometimes the result of those cases is that a primary custodian loses custody.

What is a Material Change in Circumstances

When a child has an established custodial environment with one or both parents, courts are reluctant to change custody. Although state laws may vary, before a custody order may be changed the party seeking modification must ordinarily show a material change in circumstances that justifies revisiting the prior order. In broad terms, a change in circumstances may support a motion to modify custody if a court finds that the changes documented by the parent seeking modification of custody could have a significant effect on the child's life.

Evidence of a change in circumstances is normally limited to facts and events that occurred after the entry of the most recent custody order -- the parent seeking modification must show that a significant change occurred after the date of that order.

Factors That May Trigger a Change of Custody

All of the factors previously described may factor into a change of custody, but the leading causes of a custody change include:

  • Failure to Follow the Custody Order - If a court finds a willful pattern of denial of visitation or contact with the children, contrary to a custody order, that pattern may convince the court that the custodial parent is not willing or able to foster a relationship between the children and the other parent.

  • Inadequate Supervision - Children who are getting into trouble due to a lack of direct supervision, or are struggling in school due to a parent's failure to ensure that their school work is being completed, may find those issues raised in a motion to modify custody.

  • Domestic Violence by a New Parter - A new partner's acts of domestic violence may trigger modification of custody. Often a parent whose new partner commits an act of domestic violence will be given the opportunity to end the relationship and keep custody, but at times a parent will choose the new partner over the children.

  • Inappropriate Behaviors - A parent who displays inappropriate behaviors in front of the children may see those behaviors raised as issues in custody proceedings. Inappropriate behaviors can come in many forms, including being intoxicated in front of the children, or exposing the children to pornography or sexual behavior.

  • Substance Abuse - A parent who develops a significant substance abuse or alcohol problem is at significant risk of losing custody.

  • Incarceration - A parent who is incarcerated will rarely be able to care for children during the period of incarceration, and even a short-term change of custody resulting from incarceration can form the basis of a permanent change.

  • Abuse or Neglect - Abuse or neglect that results in an injury to a child, the child's being unsafe, or a protective services investigation or emergency removal, may become significant factors in a motion to modify custody. Acts that endanger the children, such as driving while intoxicated with the children in a vehicle, may be significant factors.

  • Formalizing the Status Quo - When the parents have voluntarily changed the parenting schedule, or voluntarily changed which parent has primary custody, a court may be asked to recognize the arrangement as a new, established custodial environment and to formalize the change in a new custody order.

In less extreme cases, factors that may trigger a change of custody include:

  • The Child's Needs - Although a child's age will not normally of itself form a basis for modification of custody, if a motion is before a court the child's changing educational, social, and extracurricular activities and needs may be considered by the court in rendering its decision.

  • Relocation - A parent's relocation may require a modification of a joint physical custody order and, at times, may result in a motion to modify custody.

  • The Child's Preference - A child who was previously not old enough to state an informed preference may be able to express a preference to the court. A child who previously expressed a preference may similarly articulate whether they prefer to continue with the present custodial arrangement or if they prefer a modified arrangement.

Once a motion to modify custody is before a court, a parent whose actions, behavior or situation was previously of concern to the court may be able to reassure the court that the issue has been resolved. For example, a parent who was experiencing a substance abuse problem at the time of the prior order may be able to establish a record of treatment and counseling, followed by years of sustained sobriety.

It is a good idea for any parent who is involved in proceedings to modify custody to get assistance from a qualified family lawyer. That is especially important when the other parent has a lawyer as, whether they are seeking or opposing modification, unrepresented parents will generally find themselves at a significant disadvantage when arguing against a lawyer.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Sep 24, 2016.