Almost every other phone call or on line inquiry we receive, concerns a post judgment custody issue where someone wants to prove or allege the other parent is “unfit.” The idea is they want to obtain primary placement of the children, and in many cases, also involves pre-judgment matters.
How do you go about proving the other parent is “unfit?” Here are some things we typically hear, which unfortunately, probably doesn’t rise to the level of a parent being considered “unfit.”
– the child comes back from visits with dirty clothes on.
-the child comes back from visits dirty and unkempt having no bath or shower.
– the parent provides nothing but junk food and the child comes back from each visit hungry.
– the child reeks from second hand cigarette smoke.
– if a baby is involved, the child is returned with a dirty diaper on.
– the child complains that all they do during the visit is sit and watch TV.
– the other parent doesn’t make sure their homework is done.
The list of grievances is endless. The problem is even if true, these infractions are not generally serious enough to overcome the legal presumption in Wisconsin that custody and placement should be left as is; further, it becomes a “he said, she said” thing in court, as the other parent will deny the allegations and a parent under evidentiary rules, is prohibited in testifying in court, what the child told them out of court, because such statements are “hearsay evidence.”
Proving a parent is “unfit” rises to a much higher level than a parent alleging a child is fed junk food while in the care of the other parent.
– the parent has a problem with alcohol.
– the parent has a problem with drugs.
-the parent has charges of domestic violence against them either against the other parent or another third party.
– the parent has criminal problems or is facing possible incarceration.
– the parent has a documented history of serious mental health issues.
– the parent has been accused or charged with child neglect or abuse and has been investigated by child protective services.
– the parent has lost custody of their other children often due to abuse or neglect.
– the parent has involved themselves with a significant other who may have some or all of these “unfit” characteristics.
When one or more of these elements are present, a person has their foot in the door to show that the other parent may be unfit or otherwise incapable of taking care of the children. These still can be difficult cases to prove in court, which is why a person would benefit by hiring a skilled and experienced family lawyer to help them gain custody of their children.
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