How Can a Mother Lose Child Custody?

Historically, mothers have had the upper hand in child custody battles with fathers. Motherhood as an institution was revered, and courts operated under the assumption that mothers were de facto better parents than fathers, especially during the ‘tender years’ of a child’s development.

Times have changed. But, although reforms have made it easier for fathers to get equal treatment in custody disputes, mothers often retain an advantage, based on their role as the primary caretaker of the couple’s young children. Judges favor stability in the lives of developing children, so they are loathe to interfere with what has been working. Therefore, it is rare to see a mother lose all custody of her children, unless she does something to sabotage herself or circumstances beyond her control disqualify her.

Eight Ways a Mother Can Lose Custody of Her Children

Courts base custody decisions on the best interest of the child. So, a father, or another interested party who wants to challenge a mother’s custody rights, must present evidence of conduct that is contrary to the child’s best interest. Such conduct can include:

  1. Domestic Violence — A parent who lashes out irrationally and violently against family members is a danger to a child. Violence against a spouse, intimate partner, or other relative is grounds for terminating custody, even if the child is not a direct victim. Psychological studies have shown that exposure to parents' domestic violence can cause pervasive traumatic stress, leading to post-traumatic stress disorder. Childhood PTSD can hamper a child’s ability to function on multiple fronts, leading to diagnoses of disorders in addition to PTSD.

    Research shows that although children are highly resilient, childhood traumatic stress can last a lifetime, so survivors are more likely to have learning problems, resulting in lower grades, more suspensions, and expulsions; increased need for health services, including mental health services; increased involvement with the child welfare and juvenile justice systems; and long-term health problems, such as diabetes and heart disease.

  2. Substance Abuse — The abuse of alcohol or drugs presents concerns on many levels. First, there is the direct consequence of the parent’s impairment that makes it impossible to perform the duties of a custodial parent. This leads to neglect of the child’s health and welfare. Then there is the danger an addicted parent exposes the child to, including perhaps driving while impaired with the child in the vehicle, being absent from the home for periods of time, and associating with other addicts and possibly drug dealers. Additionally, studies have shown that children of addicts are up to eight times more likely to develop an addiction. All of these concerns are reason enough for a court to deny custody to a mother.

  3. Abuse, Neglect, or Endangerment — Physical, verbal, or sexual abuse of a child is certainly reason to deny any parent custody. Neglect of the child’s physical and emotional needs will have a destructive effect on a child’s development. Risky or reckless behavior involving the child can result in tragedy. And it is worth mentioning that abuse is sometimes disguised as earnest, even strenuous, concern. For example, a form of child abuse that occasionally grabs headlines is Munchausen by proxy syndrome, a rare psychological disorder wherein a parent seeks attention by making a child sick and appearing distressed over the condition. Munchausen by proxy is much more prevalent in mothers than in fathers.

  4. Violation of a Court Order — If a mother violates the terms of a child custody order, the court must assess whether that violation has a negative impact on the child and whether it is likely to recur. A judge could conclude that the best way to protect the child’s welfare is to change the custody order.

  5. Interference with the Father’s Rights — In too many cases, a mother who has custody will deliberately interfere with a father’s right to maintain a loving relationship with the child. This can mean canceling visitation sessions, refusing to reschedule visits, or failing to make the child available at the appointed time. Additionally, a mother might attempt to alienate the child’s affection from the father by punishing the child for maintaining a positive rapport and/or rewarding the child for rejecting the father. When a pattern of behavior emerges that seems calculated to frustrate a father’s rights, the court might decide the only remedy is to take custody from the mother and give it to the father.

  6. Abduction — If a custody order is in place, parental kidnapping can be charged as a misdemeanor or a felony. Custodial interference in the second degree is a Class A misdemeanor, punishable by up to one year in jail or probation of up to three years. This offense occurs if a child is under the age of 16 and any relative “takes or entices” that child from their lawful custodial parent, knowing they have no legal right to do so and intending to hold the child either permanently or for a protracted period.

    Custodial interference in the first degree is a Class E non-violent felony, punishable by up to four years in prison. This felony occurs when someone removes a child from the state intending a permanent relocation or exposes the child to a risk to his or her health or safety. These scenarios sometimes arise when a parent becomes stressed out over the legal proceedings and fears losing control over the child. The parent then flees the jurisdiction, taking the child along. What follows, generally, is an arrest, extradition, trial for parental kidnapping, and total loss of custody. Abduction is especially problematic when the parent is a foreign national who attempts to take the child back to the home country. If a parent is apprehended at the airport with the child, the judge will treat the matter as a serious violation of the other parent’s rights, as well as a threat to the child’s welfare.

  7. False Statements to the Court — Judges hate being lied to. Deliberate false statements waste the court’s time, make proceedings unnecessarily contentious, and can lead to erroneous decisions that injure innocent parties. Few judges will actually press perjury charges on a parent, but false statements can convince the court that supervision by the dishonest parent is not in the child’s best interests. The judge might also conclude that a dishonest parent is not likely to obey the terms of a custody order.

  8. Unfitness — There are many qualities required of a good parent, such as maturity, moral uprightness, mental alertness, physical capacity and stamina, and emotional availability. For various reasons, a mother could be deficient in these necessary qualities. Mental illness, physical disability, or chronic illness might render a woman incapable of performing the duties of a custodial parent. Such obstacles can be heartbreaking for a mother who is struggling to do her best in the face of severe challenges, but a court cannot award points for effort when a child’s welfare is at stake.

An experienced and ethical family law attorney will counsel clients against the type of conduct that can jeopardize a petition for child custody. However, when a history of such conduct already exists, the court will act on its paramount concern, the child’s welfare, even if that means denying custody to a mother until she demonstrates a firm conviction to do better.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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