California Law: What is An Unfit Parent?

John Moore/Getty Images News/GettyImages

The phrase “unfit parent” is often tossed around to describe negligent and abusive parents, but it is actually a legal term used to describe parents that the court deems unable to provide appropriate care for their children. Courts make this determination according to California criteria for unfit parents, which is a set of considerations about a parent’s past and current lifestyle and how these mesh with what the court deems to be in the child’s best interest.

Often, considerations about a parent’s fitness arise during divorce and child custody proceedings as parents attempt to “win” more time with their children by making negative claims about their former partners’ parenting abilities.

California Criteria for Unfit Parent

There are no specific legal criteria for being an unfit parent. Rather, California follows a set of guidelines for the court to consider to determine whether an individual is a fit parent or not. By applying a set of factors to each case instead of a blanket judgment of fitness, the court can consider each child’s unique needs and his parents’ abilities to meet them. Then the court and the parents can build an appropriate parenting plan.

The factors California courts consider to determine an individual’s fitness as a parent are:

• How does the parent understand and respond to the child’s needs?
• Does the parent impose age-appropriate boundaries and limits for the child?
• What has the parent’s previous involvement in the child’s life been?
• Is the parent compliant with existing custody orders and how does she resolve conflict regarding them with the other parent?
• Does the parent have a history of potentially harmful behaviors, like domestic violence or addiction?
• Does the parent suffer from psychiatric illness?
• Does the parent face challenges with social functioning?
• How does the child feel about the parent? 

Within each of these categories, the court may consider specific issues. For example, when considering whether the parent imposes age-appropriate restrictions for the child, the court might consider a teenager’s curfew or whether a child is permitted to play M-rated video games. When considering whether a parent’s mental health state will pose a risk to the child, the court may consider how the parent’s illness manifests and whether she is currently receiving treatment for it. The court has the discretion to consider one or more of these factors more heavily than others as it deems appropriate.

Understanding the Child’s Best Interest

Unfit parenting laws in California, just like the parenting fitness considerations in place in other states across the nation, were developed to help courts determine plans that are in a child’s best interest. When the child’s best interest is served, all of her personal needs are covered. She lives in a supportive, loving home where she develops healthy, consistent relationships with relatives and family friends. Typically, courts look at several factors to determine how to create an environment that serves a child’s best interests:

• The child’s medical needs.
• The child’s emotional and psychological needs.
• The child’s physical needs.
• The desirability of keeping the child in her current environment.
• The child’s relationships with both parents and others in each of their households. 
• The child’s personal preferences regarding her custody.
• The child’s academic needs and access to academic resources in each parent’s household.

Unfit Parent Laws in California

Under the unfit parent laws in California, the court has the discretion to determine a parent’s fitness. When considering the factors listed in the law, the court has the responsibility to determine how each factor truly affects the child. For example, though a parent’s cannabis use might initially appear to be a cause for concern, recreational cannabis use is legal in California, and a parent who takes the proper precautions to keep cannabis out of his children’s reach and avoids allowing his use to impact his parenting may not be an unfit parent based on that use alone.

Child Custody Laws in California

Child custody laws in California, just like child custody laws followed in many other states, make it possible for courts to create custom custody plans that meet individual children and families’ needs. Generally, there is a preference for joint custody. This means that in most cases, judges try to develop a custody plan that gives both parents time with the child, even if it is not possible to give each parent equal time. Under child custody laws in California, the amount of custodial time a parent has with his child is known as his custodial timeshare.

A parent’s custodial timeshare affects how much child support he receives from his former partner. Child support is the money one parent pays to the other after a divorce to help cover expenses associated with raising a child, such as groceries, utilities, school supplies and the cost of renting or buying a larger home.

Restrictions on Timesharing

If the court determines that a parent is not fit to have unsupervised time with the child, it may impose a timesharing schedule that restricts the parent’s access to the child in some way. This might mean barring overnight visits, requiring that visits occur in a specific public place or with a third party present or that they occur over a video service like Skype. There are various reasons why the court might impose restrictions on timesharing, such as:

• The parent is currently in jail or a rehabilitation facility. 
• The parent struggles with addiction.
• There is a concern the parent will attempt to abduct the child. 
• The child has strong negative feelings about spending time with the parent.
• There is a restraining order in place between the parent and the child’s custodial parent. 
• The parent has a history of domestic violence. 
• There is no existing relationship between the parent and the child. 

Proving One’s Fitness to Parent

Parents who face accusations of unfitness to parent can combat these accusations and demonstrate their fitness to parent their children. Many parents choose to work with family lawyers to do so, though it is legal and possible for a parent to represent herself in court. When demonstrating fitness to parent her children, she can provide specific counter evidence to the accusations she has faced. She can do this, for example, by providing documentation of her ongoing compliance with an existing custody order or proving that although she had struggled with mental illness in the past, she has received treatment and can function normally.

A parent’s lawyer will advise her about which types of evidence to use to prove fitness as a parent, including:

• Testimonies about her parenting from adults in her child’s life, like the child’s teacher or pediatrician.
• Copies of previous custody orders and documentation of her compliance with those orders or the circumstances that forced her to violate them.
• Test results showing she is not using drugs. 
• Documents showing that she has a stable home and income.

Generally, courts favor maintaining relationships between parents and their children and will only deny a parent time with her child if it is clear that contact will pose a danger to the child. Child custody orders can be modified as the child’s circumstances and his parents’ circumstances change, such as a parent’s move to a new city or the child’s desire to stop living in a parent’s home when the parent’s new partner moves in.