When a child is living in unsuitable or unsafe living conditions, their well-being absolutely must come first.
If you are a parent with a court-ordered custody arrangement and believe your child is at risk due to the other parent’s living situation, you have the right to petition the court for a custody modification.
However – as I have observed, as a family law attorney – proving an unsafe environment for a child requires strong and credible evidence.
So, in this article, I’ll show you how to prove unsafe living conditions for a child, including the types of evidence courts look for and the steps you need to take to protect your child’s best interests.
Whether you’re concerned about neglect, abuse, or hazardous conditions, understanding how to present your case effectively can make all the difference.
What to know about seeking custody changes & Child Protective Services (CPS)
For parents who are divorced and have an existing order of custody from a court of law, either parent may petition that court to modify the existing custody order if the child is subject to unsafe living conditions with the other parent.
The parent requesting to modify custody must present sufficient evidence to the court proving that the child is subject to unsuitable conditions with the other parent, and that a change in custody is necessary to serve the best interest of the child.
Depending on the circumstances, obtaining sufficient evidence to modify custody can be difficult. Below, I discuss the type of evidence a parent will need to present to the court to support a request to modify custody based on unsuitable living conditions.
For every parent, however, there is always a process available to seek court intervention to protect a child from unsafe living conditions.
That process is called “Child Protective Services (CPS).” Every state must provide a resource for reporting, investigating, and resolving circumstances in which a child is at risk of harm. The agency and the process may have a different name in different states, such as:
- Child Protective Services (CPS)
- Department of Human Services (DHS)
- Department of Family Services (DFS)
- Department of Social Services (DSS)
- Department of Youth and Family Services (DYFS)
- Dependency
- Dependency and Neglect
- Children in Need of Services (CINS)
- Families in Need of Services (FINS)
Any person may contact the Child Protective Services agency in each state at any time – 365 days a year, 24 hours a day – to make a report. There also is a Child Abuse Hotline in each state that a parent may call to make a report and initiate the CPS process.
What happens after CPS receives a report?
After receiving a report, CPS is must investigate it within a specified time period (usually 24 hours). If the report is substantiated, the agency petitions the court to intervene. They will order appropriate services to help the parent alleviate the unsafe conditions or, if the child remains at risk, to remove the child from the unsafe environment.
The reporting parent must be aware, however, that even if the child must be removed from an unsafe environment… this may not happen immediately.
Another critical note: The agency must place the child in another parent’s custody, if the other parent is fit to have custody. Until CPS can…
- Seek court approval to remove the child from the other parent
- Confirm the fitness of the reporting parent
- Conduct an appropriate home study
… the agency may have to take temporary custody of the child until he or she can be placed with the other parent or relative.
What are the legal requirements for removing a child from unsuitable living conditions?
Every court making a custody determination between two parents makes its decision based on what is in the best interest of the child.1
Before a court will remove custody from a parent, it must be shown that the parent is “unfit.” In most state statutes, this means the parent cannot properly care for or supervise the child.2 And this may include a parent’s inability to provide a safe and suitable living environment for the child.3
Legal definitions pertaining to an unsuitable environment for a child
Most states define what constitutes “unfitness” for a parent or “dependency” for a child as either “abuse” or “neglect” of the child. Each of these terms’ definitions usually inlcude specific acts or omissions. For example, a typical CPS statute might include some version of the following definitions:
- Unfit parent – a parent, guardian, or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or neglect.
- Abused child – a child whose health or welfare is being harmed or threatened by a parent, guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home.
- Neglected child – a child whose physical or mental health is harmed or threatened by a present refusal, failure, or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack of financial means
- Unsafe living conditions may include:
- Imminent danger to the physical well-being of the child
- An emergency situation threatening the child’s welfare or life
- Reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited
- Reasonable cause to believe that the following conditions threaten the health, life, or safety of any child in the home:
- Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling, babysitter, or other caretaker
- Signs indicating a pattern of abuse (that a medical professional could diagnose as battered child syndrome)
- Nutritional deprivation
- Abandonment
- Inadequate treatment of serious illness or disease
- Substantial emotional injury
- Sale or attempted sale of the child
- The parent’s abuse of alcohol or drugs or other controlled substance has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety
- Any other condition that threatens the health, life, or safety of any child in the home
The statute might also define terms such as abandonment, sexual abuse, sexual contact, and sexual exploitation.4 567
Which types of evidence do I need to prove unsuitable living conditions for a child?
It is often difficult to prove that a child is being subjected to an unsafe environment when residing with the other parent – especially if you do not have access to the other parent’s home when the child is there.
Often, confirmation of abuse or neglect must come from the child, who may be too young, confused, frightened, or hesitant to communicate their circumstances to you.
Even if your child is not providing much information about his or her circumstances when with the other parent, if you suspect your child is subject to conditions that pose a risk to his or her life, health, safety, or well-being in the custody of the other parent, there are things you can do to collect relevant evidence that may help you to protect the child.
Evidence of neglect
You can demonstrate neglect by documenting the child’s physical condition immediately before and after he or she spends time with the other parent.
Take a picture of the child and record the child’s weight before and after each visit. If the child consistently returns to your care hungry, tired, sleepy, unmotivated, lethargic, or having lost weight, this may indicate poor nutrition. You must keep diligent records.
Another factor to keep an eye on: a child’s sickness.
Now, children spread germs, catch colds, have fevers, and sustain injuries all the time. This does not necessarily mean the child is being abused or neglected. But if the child consistently returns to your care with serious medical conditions that have not been treated or evaluated for extended periods while in the care of the other parent, this can be a serious issue.
Again, document your child’s condition before and after each visit. Record when the conditions started, whether the other parent sought medical attention for the child, or what (if anything) the other parent did to treat the child. Request all relevant medical records.
In fact, failure to provide necessary medical care constitutes medical neglect and can be a basis for modifying custody.
Likewise, consistently neglecting a child’s hygiene places the child’s health at risk. Take pictures of the child’s body, clothes, and hair upon his or her return to reveal potential neglect issues. Dirty clothes and skin, head lice, skin rashes, bug bites, and malodor can indicate infestation or failure to bathe, groom, and practice proper hygiene.
Extended inattention, lack of affection, and lack of supervision can additionally place the child’s safety and well-being at risk. So, try to determine the child’s activities while in the care of the other parent:
- What did the child do?
- Where did the child go?
- Who was the child with?
- Did the parent leave the child alone at any time?
- Did the child suffer any bruises or injuries that someone supervising the child cannot explain?
- What did the other parent do during visitation? If the other parent worked all day, went out at night, or slept all morning with a hangover, who was supervising the child?
Evidence of Abuse
Proving physical or sexual abuse will require evidence from a medical professional who has evaluated the child, observed the child’s injuries, and diagnosed a cause of the injuries.
If you observe bruises, cuts, or scars on the child, always take pictures and seek medical attention. Always document to preserve evidence and to memorialize dates and events. Immediately report suspicions of sexual abuse to the police and seek medical attention.
In terms of emotional abuse: This may not be as apparent as physical abuse, but a child’s demeanor may reveal it. If the child refuses to go with the other parent or expresses fear, sadness, or concern about being in the other parent’s custody, document this and try to determine why. Listen to your child.
If your child is angry, withdrawn, or unusually timid, shy, or lacks confidence after being with the other parent, these are signs that the child may be experiencing emotional issues with the other parent.
Input from a medical professional, such as a therapist or school counselor, may be necessary to identify potential issues.
Evidence of alcohol or substance use
Evidence that another parent’s use of drugs or alcohol is affecting the child might come from a variety of sources, including the child, the parent seeking to protect the child, neighbors, teachers or school administrators, and even the alcoholic parent.
Often, a parent’s drug or alcohol use has a direct impact on the child’s safety, such as when the parent drives while intoxicated or becomes physically or verbally abusive toward the child. Under these conditions, the parent should not have custody of the child.
Any witnesses, such as another family member, teacher, or neighbor, who observes this behavior can testify to the circumstances.
However, the effect of a parent’s alcohol use on a child does not always present so dramatically.
The secondary effects of a parent’s AUD can be much more subtle and emotionally harmful to the child. Evidence supporting these claims must come from personal and professional sources who can speak to the psychological, social, and emotional impact of a parent’s AUD on the child’s long-term development and well-being.
Evidence from the child themselves
If the child is mature enough to understand and articulate his or her emotions about the parent’s alcohol use and behaviors when consuming alcohol, this is the strongest evidence of its emotional and psychological impact on the child.
The age of the child is less important than the child’s maturity and capacity to express his or her emotions. As an attorney, I have represented 13- and 14-year-old teenagers whom I could not put on the witness stand, but have presented compelling testimony from children as young as 5- and 6-years old. The emotional response from every child is different.
Examples of a child’s testimony
Keep in mind that a child’s testimony does not have to be sophisticated. A child may be able to describe simple facts and circumstances about the parent’s alcohol use relevant to the parent’s:
- Behavior while intoxicated, i.e.:
- “Daddy gets angry and breaks things.”
- “Mommy just sleeps all the time.”
- “Daddy talks funny and can’t stand up.”
- Parenting skills:
- Forgetting to pick-up the child at school
- Not imposing any rules or discipline
- Failing to secure firearms, alcohol, or inappropriate material in the home.
- Inconsistent parenting:
- Punishing behavior on one occasion, but overlooking it on another
- Drastic and sudden mood swings
- Failing to participate in school activities.
- Physical and emotional unavailability.
- Lack of affection
- Lack of encouragement or support
- Inability to listen or communicate effectively.
- Family/marital conflict.
- “Daddy gets angry and yells when he drinks.”
- “Mommy calls me names when she’s drunk.”
- Disparaging the other parent in front of the child.
- Effects on the child’s social life:
- “I am embarrassed to have my friends come over.”
- “My dad said I don’t deserve to have friends.”
- Parent acting inappropriately at school events.
The child’s simple testimony about what happens when they are with the parent who drinks and how it makes the child feel is often the best way to demonstrate to a court that a parent’s alcohol or drug use is having a negative effect on the child. Your attorney or the child’s advocate will be able to determine if evidence from your child is necessary or appropriate.
Evidence from medical professionals
Even if a child is able to testify, reports or testimony from a therapist or counselor can provide insight to the court on how a parent’s behaviors may be affecting the child. Medical professionals should be able to recommend to the court what custody arrangements may be in the child’s best interest in light of the conditions in the home.
Evidence from teachers/school officials
Stressful and unstable conditions in the home can cause a child to act out at school or suffer academically.
Teachers and school officials may be able to speak to the child’s performance, behavior, and demeanor at school, which may reveal the how the home environment is affecting the child academically and socially.
Evidence from an alcohol monitoring system
Not every parent denies or ignores the negative effect their AUD has on the child. Many parents with a substance use disorder do want to recover and are willing to work hard to improve their relationship with their children.
For parents who are agreeable, courts and attorneys find that using an alcohol monitoring system like BACtrack View is an effective way for the parent working through recovery to hold themselves accountable and to reach their recovery goals.
It also enables the other parent to assist in the parent’s recovery and provides the comfort and confidence of knowing that the child is not in an unsafe environment because of the parent’s use of alcohol.
How can BACtrack View help me determine if my child Is exposed to unsuitable living conditions?
Implementing a portable, remote breathalyzer device like BACtrack View into a recovering parent’s plan to stay sober is a perfect way to demonstrate to a court – and to another parent – that the child is not experiencing an unsafe environment while in the custody of the recovering parent.
BACtrack View provides timely and accurate evidence of a recovering parent’s alcohol consumption, which is critical when the custody of a child is involved. It ensures both parents and the court that the parent’s recovery is not interfering with the best interest of the child during the parent’s custody time.
If you are co-parenting with a recovering alcoholic, BACtrack View is a simple and effective way to support the other parent’s recovery and protect the best interest of your child. It also helps the recovering parent to prove to the court that he or she can provide their child with a safe and healthy home environment.
Sources
- https://www.divorcenet.com/resources/divorce/divorce-and-children/the-best-interests-child-factors-a- ↩︎
- https://www.custodyxchange.com/topics/custody/special-circumstances/prove-parental-unfitness.php ↩︎
- https://www.custodyxchange.com/topics/custody/special-circumstances/prove-parental-unfitness.php ↩︎
- https://niwaplibrary.wcl.american.edu/wp-content/uploads/Appendix-L-Abandonment-of-Children-Statutes-Definitions.pdf ↩︎
- https://www.nctsn.org/what-is-child-trauma/trauma-types/sexual-abuse ↩︎
- https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=18-USC-1985098950-1416810580&term_occur=999&term_src= ↩︎
- https://ojjdp.ojp.gov/programs/sexual-exploitation-children ↩︎
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