This was a question asked of me a few times over the past week. It is difficult for any parent to receive a judgment from the court where the result is a loss of legal or physical custody of their children. Many parents wonder how this can even happen when the State of Missouri believes that it is best for parents to have joint legal and joint physical custody of their children.
Section 452.375.4 RSMo. states:
- The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.
So, the question is really when does a court find that contact with one parent is not in a child’s best interest? To better understand how this could happen, below is a list of five ways in which a parent might lose custody of a child as a result of his or her own actions.
1. Substance Abuse or Addiction
The court takes substance abuse or addiction to alcohol or drugs very seriously as it directly affects a parent’s ability to care for a child. A parent who struggles with addictions to alcohol or drugs will be questioned by the other parent, the Guardian ad Litem assigned by the Court, and the Judge as being unfit or unable to take care of his or her child. The addiction places the parent at risk of having his or her custody rights revoked by the Court as a child is more likely to suffer from neglect or potential abuse due to the parent’s impairment. A parent could retain his or her custody rights if he or she agrees to and successfully completes treatment for the addiction. However, if treatment fails, then it is likely that the addicted parent will receive supervised visits only with the other parent receiving sole legal and sole physical custody from the Court.
2. Violating a Court’s Judgment
A parent’s custody rights can be reduced or removed should he or she continue to violate the terms of a child custody judgment. When a parent consistently disobeys the terms of the Court’s Judgment Parenting Plan he or she should be prepared for the consequences of his or her actions. The most common way for a parent to violate a parenting plan is by interfering with the other parent’s physical custody time by failing to exchange as ordered, or, by interfering with the other parent’s legal custody rights by making medical or education decisions with conferring or receiving the other parent’s consent. Initial violations may result in the other parent filing a Motion for Family Access or a Motion for Contempt. However, the more serious the violation is (i.e., child abduction or parental alienation), the more likely the court is to consider correspondingly stronger punishment including a Motion to Modify requesting sole legal and/or sole physical custody of the children. A parent who is being denied legal or physical custody rights will normally keep a detailed log of every time the other parent interferes with or violates their parenting plan. Every instance can be used against the other parent in court to lessen his or her legal and physical custody rights as punishment for the loss of parenting time and decision-making.
3. Child Abuse
It is always shocking to hear of any parent abusing his or her child. A parent who is found to have physically, sexually, or emotionally abused his or her child will lose legal and physical custody rights. Sometimes, a parent isn’t the abuser but knowingly fails to protect his or her children from abuse by a new partner or a relative. If the court becomes aware of this behavior, a parent is also likely to lose legal and physical custody. When parents are married, and one parent knows his or her child is being abused by the other parent but does nothing about it, that parent can be found as failing to protect their child and this can impact both parents’ legal and physical custody rights.
4. Child Neglect
If a parent neglects his or her child’s basic needs such as health and education, he or she runs the risk of losing custody. Some examples include failing to enroll a child in school, electing to home-school a child but failing to teach a curriculum, failing to maintain a proper house, and failing to care for a child’s medical needs. Neglect is often intertwined with other issues such as substance abuse or child abuse, so neglect is often considered with those other forms of abuse. Teachers, daycare providers, family members, and others are all potential sources of proof against a negligent parent. The Court understands that there is no set standard for being a perfect parent and overlooks some small mishaps such as being late picking up the children from school or not keeping an appointment. However, if there’s long-term education or medical neglect of a child and this threatens a child’s well-being, then the violating parent could risk losing his or her legal and physical custody rights.
5. Severe Mental Health Issues
The Court is not going to per se revoke custody for a mental health issue. Rather, if a parent’s mental health issue endangers a child or compromises a parent’s ability to make legal custody decisions in any way then a parent can lose legal or physical custody rights. In mental health issue cases, the Court must consider whether it is in the child’s best interests if they are left under that parent’s care. The challenging parent must prove that the other parent’s mental health issues endanger a child’s physical safety, and that supervision is necessary to protect the child. The challenging parent must prove that he or she is unable to share the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of the child with the other parent due to that parent’s mental health issues. This typically requires extensive interviews by psychologists as well as counseling before any final ruling is made by the Court. Therefore, this Court process may take a long time.
Should you need the assistance of an experienced divorce and child custody attorney or have questions about your situation, know that we are here to help and ready to discuss those questions with you.