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How Can I Prove My Spouse or Ex Is an Unfit Parent?

If you’re going through a divorce and have children, the child custody decisions are going to be a big part of the settlement. Or, perhaps you’ve been through the divorce and have a parenting plan in place. What happens if you are convinced that your spouse is, for whatever reason, not up to the task of providing appropriate parenting? You want your children protected from having to be with your spouse or ex. Now, how do you prove that to a court? What makes an unfit parent in Tennessee?

Legal Guidelines for Child Neglect

The Tennessee code on parental restrictions provides some very basic guidelines to start with. The sexual abuse of a child will make one an unfit parent and invite a host of other charges. Parents who fail to supply food or needed medical care can be considered unfit. So can parents who do not keep guns or other potentially fatal objects in a safe place and out of reach. The use of illegal drugs is a big sign that a parent may be unfit.

Physical abuse of children is one of the guidelines that the state of Tennessee must consider. Please note, this does not include any disagreements you and your spouse may have over whether some type of physical punishment (i.e., spanking) is appropriate. Tennessee law allows for a parent to spank a child, with the legal line being crossed if that punishment leaves bruises, broken bones, or some other type of lasting damage.

In the event you persuade a judge to order a child custody evaluation, four specific types of neglect:

  • Physical neglect
  • Medical neglect
  • Educational Neglect
  • Emotional neglect.

Neglect is much more common than abuse, but also harder to prove in a court of law. Keep in mind, you are not simply advocating to be given custody of the children. Charging the other parent with being unfit means they should not be around the children, at least in an unsupervised manner. Not on the weekends, not during summer vacations and not any other time. Petitioning the court to revoke someone’s parental rights is not easy. But that doesn’t mean it can’t be done.

Scenarios in an Unfit Parenting Case

A Tennessee court will consider whether a parent is guilty of willful abandonment or substantial refusal to perform parenting responsibilities for a long period of time. This can open the door to an area with considerable shades of gray.

Let’s say your spouse refused to change diapers. You could try to make the case that this qualifies under the above principle. After all, the baby needs clean diapers, and your spouse never once would do it. But while such refusal might technically fit in this category, courts are very unlikely to take this view, at least on that basis alone. Saying someone should never again see their grade school child because they wouldn’t change a diaper five years ago is quite punitive.

Or perhaps your spouse was completely uninterested in your child’s extracurricular activities at school. Not once was the other parent seen at a basketball game, dance recital or anything else that was important to the child. Are they guilty of educational neglect?

Probably not. It’s true that your spouse is unlikely to contend for Parent of the Year honors, which may help you secure primary custody, but a spouse is extremely unlikely to have their parental rights revoked because they didn’t go the extra mile on these activities.

But let’s consider whether failings like a refusal to change diapers or to attend extracurriculars can fit into a larger pattern of behavior. What if the diaper problem is just one part of an overall lifestyle where your spouse doesn’t do dishes, laundry, or anything else? In fact, in the few months that you’ve been separated, their new living quarters have turned into a pigsty.

A messy house per se, is not going to render a parent unfit. But failings to this magnitude can become a health risk to the children and, if taken to the extreme, could render the parent unfit.

What if not being in the bleachers at youth activities is just the tip of the iceberg in educational neglect? What if the spouse also refuses to even drive the kids to school? That’s a significant problem when it comes to providing for the basic needs of the child. Now it doesn’t mean that every time your spouse has an emergency come up and needs help with transportation that they’ll lose their parental rights. But, taken to the extreme, it could indeed become neglect.

Perhaps your ex-spouse moved to Atlanta a year ago and hasn’t been seen since. Yet, they want to exercise their parental rights to have the kids for an extended period over summer vacation. You’ve had enough with what you see as neglect and want their visitation revoked.

Here, again, context matters. What if the spouse went to Atlanta for a job opportunity and has continued to make child support payments? It might be aggravating that they won’t get in the car and drive a few hours on the weekend to see the kids, but it’s going to be tough to make the case for neglect. On the flip side, what if they moved for an undefined fresh start, are doing nothing anyone would consider productive and are in arrears on child support? Taken to the extreme, this could be neglect.

Another guideline to determine parental fitness is whether they can set and enforce age-appropriate boundaries on children. Perhaps your spouse watches movies with the kids that you believe fail that test. They don’t enforce curfews and have turned a blind eye on issues like underage drinking. Is your spouse unfit?

It depends. If they are watching X-rated films with an opposite-gender child or giving teenagers liquor, they might be facing bigger legal problems than being declared an unfit parent.

But, on the flip side, most parents have been “caught,” so to speak, watching a movie with kids that ends up with some moments that are a little uncomfortable. Even if you thought your spouse’s choice of viewing was imprudent, it’s unlikely to lead to a revocation of parental rights.

Or maybe you didn’t like that they allowed your 15-year-old to go to a party with college-age kids there. When the child came home with beer on their breath, your judgement may have been vindicated, but a court is likely to find the notion of saying your spouse should never see the child again to be a little harsh.

The ability of a parent to function socially is a part of fitness. A parent who isolates to an extreme risks could being considered unfit. This doesn’t mean that every parent whose hobbies are things like reading or gardening by themselves is now unfit. But what if there’s something deeply wrong, where they simply refuse to come out of the house?

Cases like these are tough because they usually point to some type of mental illness. It’s quite natural for you, and even the court, to feel empathy for the suffering person. What has to be remembered in all custody decisions, and especially examples like this, is that it’s about the kids. The best interest of the child is the paramount legal principle in all of this. If the court revokes parental rights of a mentally ill spouse, it is not the same as rendering that parent a bad person. The ruling simply says that they need help before they can meet the best interests of the child. If you believe this problem exists, it’s imperative to bring it to your attorney and to the attention of the court.

When Criminal Behavior is Involved

The examples we’ve gone through have considerable gray areas. Even cases where black-and-white criminal behavior is involved can bring with them their own shades of gray. Maybe you’ve been able to prove to the court that a spouse was physically abusive or that they took illegal drugs. Courts still see taking away someone’s parental rights as an extreme step and are going to require a corresponding level of proof that the children simply cannot be with this parent under any circumstances.

What is the extreme in cases like these, the one that leaves a court saying along with you, that enough is enough? It’s in the eye of the beholder and the judge will decide. Your role is to make sure you have a family law attorney who helps you secure the evidence necessary to make your case.

The attorneys at Casey, Simmons & Bryant, PLLC have over 30 years of experience helping clients make their case. We’re here to help people fight for the things that matter most in their lives, and what’s more important than the wellbeing of your children?

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