What are the reasons to lose custody of a child? Some of the reasons are ones you can probably guess. Others may surprise you. This article provides insight on what the most common and uncommon reasons are a parent may lose custody of a child. It also explains how particular facts of a case may have an impact on a family court’s decision. We even give you examples!
What will you learn in this article? You will learn that losing custody of a child is often the result of child abuse, neglect, knowingly false allegations of child abuse, or a finding of domestic violence. You will also learn how a failure to co-parent and even parental alienation could be a reason to lose custody of a child. The reasons to lose custody of a child written in this article are not the only ones that exist.
This article is intended for those who have a child custody matter in California or expect to have one. What we write only applies to California. This article is not legal advice. Please don’t use it as a substitute for legal advice.
If you are facing an abusive, neglectful or unreasonable parent in a child custody case, you need help. It takes courage to stand up to a bully. A parent that has been physically abusive or cowardice enough to make knowingly false allegations of abuse should not have the same parenting time as a kind and loving parent.
What does it mean to lose custody of a child?
This article focuses exclusively on what may happen in family court. We don’t address dependency court (sometimes called children’s court) or criminal law matters. We also don’t write about parental rights termination cases.
In family court, a judge may award joint or sole legal custody and joint or sole physical custody. Parenting time (also called visitation) may be equal or primarily to one parent. Losing custody of a child generally means loss of joint legal and/or physical custody. In addition, visitation may become limited or supervised.
Child abuse is the number one reason to lose custody of a child
A very common reason to lose custody of a child is child abuse.
Physical child abuse often results in wounds, scars, bruises and burns. Abusers may use their hands, feet or objects such as belts.
Physical child abuse can be disguised as corporal punishment. There is a line between appropriate discipline and abuse. Some parents choose to cross that line.
Physical abuse sometimes results from the parent’s own mental or psychological disorder. It is common for a parent who is physically abusive to have been physically abused as a child. This is called a cycle of abuse. Other parents suffer from a lack of anger management skills that manifests itself into abuse. There are a variety of reasons parents abuse their children. All of them are misguided.
Child abuse should be reported
Within the context of a family court proceeding, California law is very clear that physical abuse is a proper reason to lose custody of a child. Both legal custody and physical custody may be lost as a result of child abuse. Parenting time may be limited to supervised visitation or no visitation at all. A physically abusive parent may lose all contact with a child depending on the abuse’s severity and frequency.
It usually starts with a request for order
Losing custody of a child during a divorce or parentage proceeding often results from bringing the issue to the Court’s attention. A parent who alleges physical child abuse against the other parent typically files a request for order. This request includes a declaration and supporting evidence of the abuse. The request for order is sometimes filed as an emergency application if the parent needs immediate orders. An emergency application requires the child or children to be in imminent threat of harm. If there is no imminent threat, a regularly noticed request for order is filed.
At a hearing, a family law judge determines whether there is sufficient evidence of abuse and makes appropriate orders. A judge may believe a child custody investigation (called a CCI in Orange County) or private child custody evaluation is necessary. If so, he or she may appoint a private child custody evaluator or a child custody investigator. Such persons look into the abuse issues and report back to the court. A judge also has the power to contact social services or get the law enforcement involved. A family law judge’s focus in a child custody case is the child’s best interest. That focus means whatever steps are reasonably necessary to protect the child are usually the ones implemented.
Sexual abuse is a proper reason to lose custody of a child
Much of what we have written about physical abuse applies to sexual abuse. Sexual abuse is clearly a reason to lose custody of a child.
Sexual abuse takes several forms. It can involve overt and generally forced sexual acts or indecent exposure. Sexual abusers are found in every age group and demographic. There is no one profile fits all.
Sexual abuse should never be minimized or tolerated. Any parent who allows sexual abuse to continue is him or herself engaging in an act of serious child abuse through neglect. Such a parent may find him or herself losing custody, especially if law enforcement and social services gets involved.
Child abduction is a second common reason to lose custody of a child
Child abduction may have different meanings to different people. Our focus is how California Family Code 3048 defines it. That is a very long code section so we won’t place its text here. We do however encourage you to read it.
Child abduction is a reason to lose custody of a child. Whether it results in a total loss of legal and physical custody or a temporary one depends on the severity of the abduction. Certainly, there is a difference between taking and concealing a child from one California county to another and then returning the child when the perpetrator realizes the dangerous nature of his or her act versus abducting a child and taking that child to a foreign country and refusing to return him or her.
The method to obtain orders against abduction are similar to any other child custody case. The California Judicial Council has also created forms for abduction cases that can be used. Two of the forms are identified as FL-312 and FL-341(b) forms. The means to obtain sole legal and physical custody of a child as a result of threatened or actual abduction are beyond this article’s scope. Our law firm is experienced in such matters and you should hire an experienced family law attorney for any such case.
False allegations of child abuse should be a reason to lose custody of a child
A parent that makes a knowingly false allegation of physical or sexual abuse against the other parent is just as dangerous as a parent that abuses a child. False allegations of abuse against a parent is a proper reason to lose custody of a child. Of course, that depends on the seriousness of the allegation and whether a parent can prove a knowingly false allegation.
One example is a false allegation of sexual abuse. California Family Code 3027.5 states the following and pay special attention to the bolded sections.
(a) No parent shall be placed on supervised visitation, or be denied custody of or visitation with his or her child, and no custody or visitation rights shall be limited, solely because the parent (1) lawfully reported suspected sexual abuse of the child, (2) otherwise acted lawfully, based on a reasonable belief, to determine if his or her child was the victim of sexual abuse, or (3) sought treatment for the child from a licensed mental health professional for suspected sexual abuse.
(b) The court may order supervised visitation or limit a parent’s custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent’s lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state’s policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020.
Child neglect may be a reason to lose custody of a child if it is serious
Child neglect may be a form of abuse. We call it “neglect” because this form of abuse generally results from a failure to act. Failure to properly feed, clothe or groom a child may be neglect. Failure to provide a sanitary and safe living environment or the necessities of life may be neglect.
Child neglect may be a reason to lose custody of a child if that neglect endangers the child’s health or safety. This is especially true if the neglect is pervasive.
Neglect may be difficult to prove. If a child is malnourished, he or she may look very thin, lack energy or become ill more often than what is normal. That, by itself, may not be apparent to anyone but those who see the child on a frequent and regular basis. A non-neglectful parent, an older sibling, a grandparent who sees the child regularly, a teacher and those actively in the child’s life are the best at noticing neglect. Doctors and other health care professionals who examine a child, especially during examinations, are also valuable in this regard.
Some parents ignore neglect. They do not take any action to stop it. That is the same as ignoring abuse. If the neglectful parent will not change his or her ways, much of the same methods to stop abuse are available to the other parent.
Domestic violence raises a presumptive reason to lose custody of a child
Domestic violence and child custody sometimes collide in a family law case. And when they do, much of the focus becomes whether there has been a finding of domestic violence against the accused parent and, if so, whether that is a sufficient reason to lose custody of a child.
On this topic, we have written an article about the impact of domestic violence on a child custody case. We encourage you to read it because it provides a good summary of California law on this issue.
Is violating a child custody order a proper reason to lose custody of a child?
Violating a child custody order can range from the technical and very minor violation to a willful and significant one. Whether violating a child custody order is a proper reason to lose custody of a child depends on the violation’s nature and extent. Let’s take two examples.
For our first example, assume a parent is late to custody exchanges. That parent at least one to two times per week will arrive 15-20 minutes late. This aggravates the other parent and the other parent wants the tardy parent to lose custody of the child during that day the parent is late. Will that happen? Unless the court order specifically carves out forfeiture of visitation on that day, it is not likely. And the problem the other parent faces is if he or she refuses to give the tardy parent custody of the child, that other parent may be accused of violating the other’s custodial time. There are ways to avoid these problems and the best one is to request the court make orders that a parenting time is forfeited if a parent is more than a certain number of minutes late.
For our second example, assume a parent makes significant decisions in a child’s life without consulting with the other parent even though both parents share joint legal custody. This includes major medical decisions or educational ones such as changing a child’s school. It may involve placing the child in extracurricular activities that interfere with the other parent’s custodial time. Are these reasons to lose custody of a child? It may be.
Hopefully, that joint legal custody order is well drafted. A parent who often, willfully violates the other parent’s joint legal custody rights should lose legal custody under most circumstances. It is possible the violation was not willful and isolated. It is also possible the Court does not believe the violation was significant enough to merit a loss or change of custody. The Family Court has broad discretion on child custody cases.
Of course, the actual factual situation should carefully be analyzed. But in cases of a willful violation, especially those that are not isolated, seeking a modification from joint legal custody to sole legal custody may be appropriate. After all, what is the point of a court order for joint legal custody if willful violations don’t have consequences?
Separate from a child custody modification, the non-violating parent may have a case for a family law contempt action against the other parent.
Under what circumstances should a refusal to co-parent be a reason to lose custody of a child?
Co-parenting problems are common. Some parents simply cannot do it and may need to consider parallel parenting plans. But is a refusal to co-parent a reason to lose custody of a child? The answer is it depends on whether that refusal to co-parent rises to the level of impacting the child’s best interest. This includes the child’s health, safety, education or general welfare. Since the best interest standard in child custody cases is the foundation for a family law judge’s decision, the lack of co-parenting must be serious. Here are some examples:
- One parent disagrees with the general choice of clothing or amount of makeup for their daughter. He or she attempts to communicate with the other parent but the other parent refuses to do so because he or she believes their daughter is old enough to make those choices. While this may be a lack of co-parenting, it is unlikely such a failure to co-parent would result in loss of custody unless the clothing or makeup issue is an extreme circumstance.
- The parents have a 12 year old child that is getting the grade F in 4 out of his 5 classes and is seriously acting out in class, getting into fights and regularly being disciplined. The non custodial parent is very concerned and has learned much of the problem arises from the child’s home life and not getting his homework done while with the custodial parent. The non custodial parent has attempted to co-parent but the custodial parent doesn’t want to hear it and refuses to communicate with the non-custodial parent. Is this level of refusing to co-parent a proper reason to lose custody of a child? The answer is probably although there may be solutions less extreme than losing custody of a child. The court may order the noncustodial parent to see the children more in the evenings and after school so that parent can attend to homework. The court may give discretion on educational related decisions to the non-custodial parent and take parts of the custodial parent’s joint legal custody away. It doesn’t always have to be all or nothing. However, in extreme situations, that may be a reason to lose custody of a child.
How does parental alienation factor into losing custody of a child?
Like some of the other reasons to lose custody of a child, whether parental alienation is enough depends on the nature and extent of it. Our family law attorneys have seen and handled extreme cases. We have successfully modified child custody as a result of parental alienation. We have also seen situations where the alienation had taken place for so long and was so pervasive that by the time the alienated parent came to us, there was not much we could do. This is especially true with older, teenage children.
Parental alienation is similar to neglect because it is not always apparent. It can take place for years without being noticed by anyone other than the other parent or those very close to the child. An alienated parent must act quickly and decisively. We strongly encourage you to read the parental alienation articles we have written to learn more.
Are there other reasons to lose custody of a child that we have not discussed?
Yes. Clearly, no article will cover every situation. Our family law firm is very experienced in handling child custody cases. Sometimes, we have filed a request to take custody away from a parent who refuses to act consistent with the child’s best interest. Whether your case has a proper basis to make such a request is a fact specific question. You will likely not find answers to that question on the internet. You need experienced and knowledgable legal representation.
Please contact our Orange County family law attorneys if you have a matter or expect to have a matter in our county. We offer an affordable initial strategy session that fits your needs. Our family law firm represents married and unmarried parents and handles matters prejudgment and post judgment. We have offices in Santa Ana and Mission Viejo.
We hope you enjoyed this article. Please visit us often for additional informative articles and guides on California family law.