How to Defend Yourself Against Parental Unfitness Claims

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1Analyzing the Allegations

2Building a Defense

3Defending Yourself in Court

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To defend against a parental unfitness claim, you first have to understand why you are being accused of being unfit. Generally, parental unfitness arises when you abuse or severely neglect your children. To build a defense, you should find evidence that undermines the allegations against you. You may also have to undergo a child custody evaluation. To make out your best defense, you should have the help of a lawyer.

Steps

Part 1

Part 1 of 3:

Analyzing the Allegations

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   Identify who is suing you. Parental unfitness claims can be made in several situations, though the two most common are in divorce/child custody proceedings or in proceedings started by your state’s Department of Health and Human Services (DHHS). The consequences are different in each.

   • First, your former spouse or partner might claim you are unfit as part of a custody dispute. In this situation, the other parent should file a lawsuit in court and send you a copy of the petition. If a judge agrees, then they might give your ex sole custody of the children or the majority of parenting time (and you get visitation).
   • Second, the state might also try to remove the children from your home by claiming you are unfit. Your state’s DHHS may have gotten a tip of abuse or neglect from your child’s teacher, social worker, or doctor. The state will begin paperwork to remove the child and then come up with a rehabilitation plan. If you can’t improve as a parent, then the state will move to terminate your parental rights.
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   Check the allegations. Unfitness can take many forms. However, there are common allegations which, if true, would make you an unfit parent. They include the following:

   • Abuse or neglect that is chronic or severe.
   • Abuse or neglect of other children in the household.
   • Sexual abuse of the child.
   • Child abandonment.
   • Mental illness or other deficiency that is long-term.
   • Drug or alcohol-induced incapacity, if long-term.
   • Involuntary termination of your parental rights to another child.
   • Failure to stay in contact with the child or support them.
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   Read your state’s laws. There are other factors a judge considers other than those listed directly above. You will have to read your state’s laws to find out what else shows your unfitness. You can find your state laws online. You can find summaries of your state’s law at the Child Welfare Gateway.

   • In about half of all states, for example, any conviction for a sexual offense is grounds for parental termination. You do not have to be convicted of sexually assaulting the child.
   • In a few states, being a registered sex offender is also a ground for terminating parental rights.
   • In some states, committing a crime of violence against the child or another family member is also grounds for terminating your rights.
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   Analyze what evidence the other side has. Neither your ex nor the state can make allegations without any proof. You should read the petition or other court document and try to figure out what proof they have that you are unfit.

   • For example, the state might be relying on the testimony of your ex, who might claim that you have beaten your child or abandoned them.
   • If you were convicted of a crime, then the state or your ex might rely on that conviction.
   • There may also be medical evidence or other documentary proof that you have neglected or harmed your child. These may be mentioned in the petition.
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   Be respectful to the case worker. You might not know an allegation of unfitness has been made until a Department of Health and Human Services caseworker shows up at your house to take your children. No matter how shocked or upset you might be, you should try to be as polite as possible.

   • You will have to work with the state agency to get your children back. Accordingly, try your best to maintain a professional relationship, no matter how emotional you feel.
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   Hire an attorney. You definitely need legal help defending yourself against an unfitness claim. You should find a lawyer as soon as possible and schedule a consultation.

   • At your consultation, show the lawyer your copy of the petition. Discuss why you believe the allegations are false. Ask the lawyer what kind of evidence would be helpful for your defense.
   • Costs are often a concern for people. Talk with the lawyer about how much it would cost to represent you. Try to find the money.
   • If DHS is trying to terminate your parental rights, then you might have the right to a court-appointed attorney. You should ask the court clerk.
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   Respond to the lawsuit. If the other parent has filed to modify custody, then you need to respond by filing a document with the court. Talk with your lawyer, who can draft the document for you. You typically have to file an “answer.”

   • If you don’t have a lawyer, then look on the court’s website. There may be a printed, “fill in the blank” answer form.
   • You have a limited amount of time to file a response with the court. The deadline should appear on a “summons” or other document you received with a copy of the petition.
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Part 2

Part 2 of 3:

Building a Defense

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   Find helpful evidence. What qualifies as helpful evidence will depend on the allegations against you. Sometimes, you might want to show that the other parent is lying about your relationship with the children.

   • If your ex accused you of slapping your child during her birthday party, then you should find witnesses who were at the party but didn’t see you hit your child. This type of witness undermines the accusations against you.
   • If you are accused of never seeing your child, then you should write down the days and times when you visited. Also look for other evidence, such as photographs of you and your children together.
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   Explain long absences. The state or your ex might claim that you are unfit because you have gone a long time without seeing your children. You will need to explain any lengthy absences. Preferably, your explanation will not be that you were in prison or that you dropped out of society because of a drug addiction.

   • If you were working in a different part of the country, then get letters from your employer stating the dates you worked and your work schedule.
   • If you didn’t have enough money to travel and see your children, then get copies of financial records which show your financial situation.
3. 
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   Identify non-arguments your ex has made. You should go through the petition and find arguments that aren’t legal arguments. For example, your ex might claim you are unfit because you don’t buy your children birthday presents. Or your ex might claim you are an unfit mother because you work a job. Those are not actual legal reasons to find someone unfit.

   • Go down through the petition and check to make sure each allegation is a legal reason provided in your state’s laws for finding you unfit.
   • Highlight any allegation that isn’t a real legal reason and point it out to your lawyer.
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   Take a drug test. If you have been accused of being incapacitated because of drugs or alcohol, then you may have to take a drug test. It is important to pass these tests, so don’t drink or do any recreational drugs during the legal dispute.

   • If you do have a problem with drugs or alcohol, then you need to immediately enter a treatment program.
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   Get copies of your child’s medical exams. If you are accused of severe neglect, or physical or sexual abuse, then your child should have a physical exam. The exam will document whether there are signs of neglect or abuse.

   • The judge will probably order that a medical exam be taken. You may have to pay for some or all of it.
   • Make sure to get a copy of the report and have your attorney read it.
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   Undergo a child custody evaluation. Either parent may request a child custody evaluation in a custody dispute. A judge might also request it. The judge then uses this evaluation to decide what is in the child’s best interests. A typical evaluation will consist of the following:

   • Information gathering. The evaluator gathers important records, such as school records, police information, and social service records. You may have to give your permission for the evaluator to gain access to this information.
   • Interviews. You will probably meet individually with the interviewer along with the other parent. The evaluator might also want to meet with you and the children, to see how you interact.
   • Psychological testing. If this information is helpful to the judge, then psychological testing may be done.
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   Read the evaluation report. You generally should be able to get a copy of the report, although it will be sealed and made unavailable to the public. You and your lawyer should read the report and analyze whether the report helps you or not.

   • For example, the report might claim that you have no psychological impairment and your children have a good relationship with you. In this situation, you will rely on the report heavily.
   • However, the report might contain a less helpful assessment. For example, the evaluator might recommend that you only get visitation with your children until you address certain substance abuse or psychological issues. In this situation, you should work with your lawyer to come up with a strategy to minimize the report.
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Part 3

Part 3 of 3:

Defending Yourself in Court

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   Talk to your lawyer about the process of terminating parental rights. If DHHS has removed the children from your home, then you should talk about the process with your lawyer. You may have to attend multiple hearings. Your lawyer will let you know how to prepare for each one.

   • In Maine, for example, you will have a “jeopardy hearing,” where a judge might find that you are a danger to your children. You and the state will then work on a plan to rehabilitate yourself. If you can turn your life around, then you will be reunited with your children.
   • However, if you can’t improve your parenting, then the state will seek to terminate your parental rights at a separate hearing.
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   Line up witnesses. You can have witnesses testify for you in a custody dispute or in a termination of parental rights hearing. Once you have identified witnesses, you should make sure that they agree to attend your hearings. Generally, you can serve a “subpoena” on each witness, which is a legal command to attend a hearing. Your lawyer can probably issue subpoenas or the court clerk can.

   • You can help your lawyer by giving them the names and addresses of witnesses. Your lawyer can then reach out to them and decide if the person would make a good witness.
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   Cross-examine the other side’s witnesses. At the hearing, the other side will get to present witnesses and documents that show you are unfit. Your lawyer will get a chance to cross-examine these witnesses.

   • During cross-examination, your lawyer might try to get the witness to admit they weren’t in a position to really see what they claim. For example, a person who claimed to see you strike your child might have been on the other side of the room when it happened.
   • Your lawyer might also try to show that the witness is untrustworthy. For example, a witness might have given conflicting statements about an incident. This is called “impeachment.”
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   Testify on your behalf. You will always have a chance to present evidence showing that you are not unfit. You can have witnesses testify and introduce documents. You might also testify on your own behalf as well. When you testify, remember the following tips:

   • Listen to the question asked and remember to answer only that question. Don’t provide more information than is necessary.
   • If you don’t understand a question, ask the attorney to clarify or restate it.
   • Don’t talk over the attorney. Also, if your attorney objects to a question, then wait for the judge to rule on the objection before answering.
   • Never guess. If you don’t know the answer, then say, “I don’t know.” When you provide estimates, make sure everyone knows you are providing an estimate.
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   Receive the judge’s decision. A judge (not jury) will decide who gets custody or if your parental rights are terminated. The judge may decide the issue at the end of the hearing or make a ruling later after analyzing the issues.
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   Consider an appeal. In an appeal, a higher court reviews the trial transcripts and looks for errors the judge made. If an error is sufficiently serious, then the appeal court might set aside the judgment. You should talk with your lawyer about whether to appeal.

   • In particular, talk about whether you have a strong reason for appealing. You can’t appeal simply because you are angry at losing. Instead, you must find some error the judge made.
   • Also move quickly. You generally don’t have a lot of time to file a Notice of Appeal—sometimes only 10 days.
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