8 Things that Can be Used Against You in a Custody Battle, Explained by an Attorney

What can be used against you in a child custody case? Unfortunately, a lot. Because being in a child custody battle can be one of the most emotionally draining and difficult aspects of a divorce. According to one recent report summarizing divorce settlement statistics, 35% of divorce settlements involve disputes over child custody.

And, in approximately 85% of those custody cases, the parents will reach an agreement on some form of shared custody arrangement within six months, without having to go to trial; in fact, only about 10% of child custody disputes are determined by a judge in a court of law.

Even in cases in which the parents reach an agreement, however, the custody agreement the parents reach will only last about three years, on average, before one of the parents seeks to review or modify the custody arrangement.

In any custody case – contested or not – the other parent always has a right to present evidence to the court demonstrating that you are not acting in the best interest of the child and that your custody should be restricted or terminated. Therefore, it is critical for every parent to know what evidence the other parent may use against you to modify your custody of your child.

Here are eight things that can be used against you in any child custody case, that the court may consider sufficient to modify or terminate your parental rights.

8 things that can be used against you in a child custody case

1. Parental unfitness

Every custody determination is based on the best interest of the child. In most custody cases, both parents are fit to provide for the best interests of the child; the question then becomes how the parents will share custody so that the arrangement best suits the child’s needs.

However, when a parent acts in any way that places the child at risk of harm, the parent may be determined to be “unfit” to have custody. When a parent is unfit, the court may suspend or terminate the parent’s custody of the child.

Actions for which a parent may be determined to be unfit to have custody usually involve some form of abuse or neglect. This may include:

• Physical abuse, which may consist of hitting, kicking, shaking, or any act that causes physical injury or a substantial risk of injury

• Emotional or mental abuse, including threatening, isolating, humiliating, chronic taunting or teasing, or otherwise causing emotional harm or a clear threat of emotional harm

• Sexual abuse or exploitation, such as inappropriate touching, penetrating, using the child in (or exposing the child to) adult or child pornography, anything that may constitute “grooming” behavior, or trafficking
  
• Neglect or failure to provide necessary care, including failure to provide adequate food, shelter, clothing, or medical care
  
• Placing the child at risk, which may include unsafe living conditions, exposure to domestic violence, or exposure to drugs or alcohol

Legal strategy: Handling allegations of substance abuse

Allegations of substance abuse (whether true or fabricated) are among the most damaging claims in a custody battle because they directly target the safety of the child.

Because family courts must err on the side of caution, a mere accusation can sometimes lead to temporary restrictions or supervised visitation orders.

The proactive defense: If you are facing assertions of substance abuse, relying on your word alone is often insufficient. In these instances, proactive, documented evidence is your strongest defense. Many legal professionals now recommend that parents voluntarily use remote monitoring tools, such as BACtrack View, to generate an irrefutable history of sobriety.

By submitting to scheduled, video-verified breathalyzer tests via smartphone, a parent can create an objective data log to present in court. This strategy serves two powerful purposes: it disproves false “he-said-she-said” allegations with hard data, or, in cases where a parent is in recovery, it demonstrates a verifiable commitment to sobriety and safety.

Each state may define “parental unfitness” and the actions that qualify for it differently. But every parent must understand that any action that places the child at risk of harm may always be used against you to negatively affect your custody of your child.

2. A passive parent-child relationship

Unless a parent is determined to be unfit based on the actions or omissions discussed above, a typical custody battle usually involves two fit parents who either agree to share custody equally or who are vying to be the primary custodian of the child.

So, when two fit parents fight for primary custody of the child, in determining what (or “who”) serves the best interest of the child, the court will apply the presumption of the “primary caretaker.”

This means that the court will presume that the parent who provides the primary care for the child will be awarded primary custody. The burden is then placed upon the non-primary caretaker to overcome that presumption by showing that the primary caretaker is unfit. Since this is usually not the case, primary custody is usually awarded to the primary caretaker (which, in 80% of single-parent homes, is the mother).

Evidence considered to identify the primary caretaker usually consists of evidence demonstrating how involved the parent is in the child’s daily routines, such as:

• Waking the child in the morning
• Preparing the child for school
• Feeding the child at mealtime
• Driving the child to school
• Participating in school activities
• Attending the child’s extra-curricular events
• Attending parent-teacher conferences
• Taking the child to medical appointments
• Doing homework with the child
• Disciplining the child
• Performing bedtime routines

The court will determine the child’s primary caretaker based on which parent is more actively engaged in the child’s life. When one parent works all day and the other parent is the homemaker, the primary caretaker is usually pre-determined.

It is important, therefore, that each parent takes advantage of the time they have available to actively engage in the child’s life. If a parent takes a passive role in the child’s life or makes little effort to provide parental care, it does not necessarily mean that the parent is unfit… but this is a significant consideration for the court in determining primary custody between two fit parents.  

3. An unstable home environment

It is always in a child’s best interest to have a stable home environment. Always. This means not only having a safe place to live under adequate conditions (sufficient space, heat, cleanliness, etc.), but also having a peaceful environment, free of abuse, hostility, chaos, or danger, all within a consistent family structure.

A parent’s multiple relocations or multiple partners can have a negative impact on the child’s educational, social, and behavioral development. Even when the family unit is stable, creating a volatile atmosphere in the home can also cause negative effects on a child’s well-being.

If a parent relocates numerous times or develops a pattern of introducing multiple intimate relationships into the household – and these behaviors are shown to have a negative impact on the child’s well-being – these otherwise normal (or even necessary) choices can be used against the parent in a custody dispute.

Every parent must be mindful of how their behavior may affect the child and, therefore, may possibly affect their custody of the child.   

4. Inconsistent or inappropriate discipline

Every parent disciplines a child in their own way. Even married couples often disagree about the use of corporeal punishment as a form of discipline. And that’s okay. There is no single, correct way to effectively discipline a child.

However, there is definitely a “wrong” way to discipline a child. And employing the wrong way can not only have long-term consequences for the child, but it can have immediate consequences for your custody of the child.

Child behaviorists agree that positive discipline is necessary for a child’s healthy development. Positive discipline consists of supporting and encouraging the child to take responsibility for their actions and to think about the consequences of their behavior. It requires respectful communication that provides clear and reasonable expectations for the child’s behavior.

Positive discipline helps a child learn self-control and appropriate social responses. It also promotes self-confidence and healthy decision-making. A parent who employs positive discipline is normally viewed as satisfying the best interest of the child.

However, a parent who employs harmful discipline is likely to create negative reactions in the child and, if significant enough, may lose custody of the child based on their inability to discipline appropriately.

Harmful discipline can include:

• Yelling or shouting
• Humiliation
• Belittling
• Physical harm
• Excessive corporeal punishment

Corporeal punishment may be considered acceptable if the punishment is moderate, reasonable, and appropriate in light of:

• The child’s age
• The child’s condition
• The nature of the misconduct being punished
• The type of punishment imposed
• The degree of harm that results from the punishment (i.e., a handprint, cut, bruise, or welt may be excessive)

Corporeal punishment that is excessive is any form of discipline that results in physical or mental harm to the child. This type of punishment may easily cross into the area of child abuse and may negatively affect the parent’s custody of the child. 

5. Inability to make decisions based on the child’s best interests

In determining an initial custody award or deciding whether to modify an existing custody arrangement, the court will prefer to award primary custody to the parent who is better able to make decisions that are based on the child’s best interest.

When a parent is unable or unwilling to cooperate in decision-making about the child with the other parent, it not only impedes accomplishing what is in the child’s best interest, but it may require additional remedial measures like mediation, court involvement, or even counseling.

Courts will often avoid these extra measures by simply awarding decision-making authority (legal custody) to the parent who is better able to make decisions based on the child’s needs. When a parent is not willing or able to do this, the court can suspend their legal custody of the child, which means that they are no longer able to make primary decisions on behalf of the child.    

6. Inability to communicate with the other parent

For divorced parents to be able to make decisions about the child that are in the child’s best interest, the parents have to be able to communicate respectfully with each other and reasonably determine what is in the child’s best interest. This usually requires full disclosure of information regarding the child, honesty, and compromise.

The parent who is willing and able to move beyond the animosity and resentment that linger between the parents – and focus on communicating effectively to make decisions – will be the parent who is more likely to be awarded primary custody.

When a parent remains angry or disappointed about the marital issues that led to the divorce and is unable or unwilling to separate those issues from the issues that affect the child, that parent may jeopardize their continued custody with the child.     

7. Disparaging the other parent

It is refreshing when parents are able to come to an agreement about the custody arrangements that will best serve the child’s needs and interests. It may not be the arrangement each parent prefers, but it is usually the arrangement the child needs, and both parents usually work together for the well-being of the child.

Sometimes, however, one parent engages in behavior that negatively affects the child and that behavior is difficult for the other parent to support. This may include drug or alcohol addiction, gambling addiction, physical or verbal abuse, or simply being physically or emotionally unavailable to the child on a consistent basis.

Now, as a child custody attorney, you would think that these are the easiest custody cases to win, and often they are. But they are also the cases in which it is most difficult to convince the parent not to jeopardize their own custody of the child by disparaging the other parent in front of the child.

When a parent is struggling with an addiction disorder or other consuming behavior that almost always has a negative impact on the child – unless or until the court restricts or terminates that parent’s custody – it remains in the child’s best interest to have a positive relationship with that parent. When a custodial parent disparages or belittles the struggling parent in a way that negatively influences the child’s opinion of that parent or their willingness to relate to that parent, it is often viewed by the court as interfering with the child’s best interest. This is always a factor the court can consider in making or modifying a custody award.

Difficult though it may be, a parent must support the child’s relationship with the other parent if they want to have or retain custody of the child. The parent who constantly insults or disparages the other parent in the eyes of the child only demonstrates to the court that they are not likely to act in a way that advances the child’s best interest of having a positive relationship with the other parent.

This does not mean the parent must endorse behavior that is detrimental to the child or lie to the child about the shortcomings of the other parent. What may be used against the parent in the battle for custody, however, is taking affirmative action to interfere with the child’s relationship with the other parent. Constantly berating or belittling the other parent in front of the child will accomplish this. 

8. Not supporting the child’s relationship with the other parent

Supporting the child’s relationship with the other parent requires more than simply holding your tongue when you have nothing nice to say about your ex. Unless one of the parents is determined to be unfit, the court normally presumes that it is in the child’s best interest to have a healthy, loving, but separate relationship with each parent after a divorce. This requires each parent to be willing and able to support and encourage the child’s relationship with the other parent.

Co-parenting separately (yet effectively) with the other parent requires each parent to put aside their differences and act in every way that advances the child’s best interests. This includes:

• Communicating respectfully
• Being willing to compromise
• Respecting boundaries
• Refraining from disparaging remarks
• Cooperating with a parenting plan
• Avoiding hostility
• Being honest
• Setting appropriate limits
• Respecting each other’s appropriate parenting style
• Allowing the child space to have a separate, loving relationship with the other parent

What can be used against you in a custody battle? The bottom line 

There are very few things in life that can be more emotionally difficult to endure than a divorce. One thing that is always more difficult than a divorce, however, is a divorce that involves a contested custody battle.

When two parents fight over custody, there seems to be no limit to which a parent will not go to cast the other parent in a negative light. In many cases, it is truly “no holds barred.” Anything and everything can be used against you in a contested custody battle.

Child custody attorneys worth their salt know this and go to great lengths to advise their clients of the acts and omissions that may affect their custody of their child. This article offers just a few of the most common factors a court will consider when determining whether a parent is going to be able to support the best interests of the child by having primary or shared custody of the child.

You can be sure that if a parent acts in any way that places the child at risk of harm or is contrary to what is in the child’s best interests, the court will not hesitate to modify or terminate that parent’s custody of the child.

About The Author

Michael Flannery

Family Law Attorney, Professor

Michael T. Flannery is the Judge George Howard, Jr. Distinguished Professor of Law at the University of Arkansas at Litt... Read More