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Both Parents Found Unfit by Court, What Then?

by | Jun 15, 2021 | Child Abuse, NY

When two parents separate or get a divorce, who the child will primarily live with and who gets to spend time with the child in what types of environments must be decided. Often, this isn’t exceedingly complex; if one parent is considered unfit or a danger to the child, they will simply live with the other. However, there are some family legal cases where the capacity of both parents to care for their child is in question.

Here’s what you should know about how courts decide whether a parent is unfit or not and who to call when you need family legal advocacy you can trust.

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What Is an Unfit Parent?

In general terms, an “unfit parent” is someone that a court of law has deemed unable, or unsafe, to care for their own child. This can be for a variety of reasons, such as if there is a history of domestic violence against the child. Typically, in court cases where a child’s welfare must be seriously considered, a guardian ad litem is appointed. This is an attorney specifically for the child and represents the child’s best interests only. They review a number of things before making a recommendation to the court regarding custody and visitation.

Factors Long Island Family Courts Use to Determine If a Parent Is Unfit

The following indicators are the most commonly considered when evaluating if a parent may be unfit to care for their child:

  • Disciplinary measures used against the child. Cruel or inhumane disciplinary tactics may result in a parent being named unfit.
  • Setting age-appropriate boundaries. Courts will think twice about awarding custody to a parent who allows their child to have unfettered access to R-rated movies and other inappropriate material.
  • Parent-child communication. A judge is more likely to award primary custody to the parent that has the best communication and relationship with the child.
  • How involved each parent has been in the child’s welfare up to this point. If one parent has been substantially more involved with the child’s daily care, the court will likely favor them over the other parent without compelling evidence to the contrary.
  • If one or both parents have a history of child abuse or domestic violence. A history of domestic violence — whether against the parent’s own child or another — is a red flag for Long Island family courts.
  • If the child has been allowed to witness violence in the home. Furthermore, if there was violence in the home and the child was allowed to witness it, the court will determine how each parent played a role.
  • If one or both parents have a history of past or active substance abuse. Substance use disorders can make it difficult for a parent to care for their child and may require residential treatment, during which a child may need to be placed into foster care.
  • If one or both parents are diagnosed with psychiatric illnesses that potentially impact their ability to care for their child. Serious mental illnesses that cause confusion, memory loss, and other debilitating symptoms may make it impossible for a parent to safely care for — and keep track of — their child or their child’s activities.
  • How the child feels about the parent. Regardless of the child’s age, their feelings toward each parent will be thoroughly evaluated for unhealthy patterns. A child will not be forced to stay with a parent they are clearly uncomfortable with.

What Happens If a Court Believes Both of a Child’s Parents Are Unfit?

If a guardian ad litem recommends to the court that neither parent are capable of adequately caring for the child, the child may be placed with social services until a foster home can be secured. Parents may be able to meet certain court orders over time to gain visitation and eventually custody back of their children, depending on the circumstances of the family’s situation.

When Extended Family Members Can Step In

Grandparents may be able to petition the court for an evaluation of the child’s parents if there is substantial evidence to warrant doing so. Grandparents do have some rights to visitation and a relationship with their grandchildren under New York law, however, this isn’t always cut and dry. In some cases, a court may only award grandparents with visitation if it’s in the best interests of the child. However, in cases where a grandparent has petitioned for custody of the child due to the unfitness of both parents, a court may award them with full legal and physical custody of the child. Depending on the case, this may or may not be permanent.

Contact a Long Island Divorce and Family Lawyer Today for Help

At Hornberger Verbitsky, PC, we understand how painful it can be to be considered an unfit parent when you’re trying your hardest just to survive. We also know how difficult the choice is for grandparents or other entities to step in for the welfare of the child. No matter what side of the issue you’re on, you need a Long Island family lawyer who will treat your case with the sensitivity and care it warrants. Contact us today to learn more or to schedule your free initial consultation at 631-923-1910 or fill out the short form below.


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