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Child Custody | Family

What Can Be Used Against You in Child Custody?

16 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

In general, anything negatively affecting the caregiver’s ability to parent and provide for a child may be used against them in custody proceedings. This includes but is not limited to a criminal background, financial instability, a history of drug or alcohol abuse, and any evidence of neglect or abuse.

A judge may also consider other factors when determining child custody, such as the parent’s level of involvement in the child’s life, their relationship with extended family members, and any mental health or developmental issues that may affect how they interact with each other. It is also essential to demonstrate proof that a parent can put the child’s needs first and provide a stable environment for them to grow up in.

If you face a child custody dispute in your divorce process, always best to speak with family law attorneys. They can provide guidance and advice on how to present your case in the most favorable light possible.

Connect with an unbundled attorney to discuss the specifics of your case and learn about your options.

Legal Framework for Child Custody Determinations in Custody Proceedings

In the United States, child custody determinations fall within the purview of state law, and each state has specific guidelines. However, a unifying principle guides all these determinations: the best interests of the child. This principle serves as the cornerstone of every child custody decision, and it is enshrined in the legal framework of every state.

In other words, a judge will always weigh the potential options and decide which custody arrangement is best for the child involved. This means that even if one parent may have more financial resources or stronger ties with the child, that parent may not necessarily be awarded custody. Factors including the emotional and physical well-being of the child, as well as their educational prospects, will always be taken into account before a judge makes their ruling.

Parenting Behavior as a Determining Factor in Child Custody

Parenting behavior is a significant factor that courts look at in child custody cases. While no one is expected to be a perfect parent, the court will still want to know that the parent is capable of providing a safe, nurturing environment for their child.

Can Past or Present Drug or Alcohol Abuse Be Used Against You?

If you’ve had issues with substance abuse, it may be considered a risk to the child’s safety and well-being. Evidence of substance abuse can come from various sources, including police reports, medical records, or testimonies from witnesses who can attest to your behavior under the influence.

Consider this: You’re arrested for driving under the influence with your child in the car. This incident is documented and can serve as evidence in court to demonstrate a risk to the child’s safety. This can make it challenging for you to retain or gain custody rights.

However, suppose you have a history of substance abuse but have taken steps toward recovery, such as attending rehabilitation or maintaining sustained sobriety. In that case, the court will likely take these efforts into account. They’re not looking to punish past mistakes but rather to ensure the child’s safety and well-being in the present and future.

Can Neglect or Abuse Be Used Against You?

Allegations of neglect or abuse are serious and can significantly impact a child custody battle. Child abuse, whether physical, emotional, or neglect, is a grave concern for the court. If there’s proof that you have neglected or abused your child, it can lead to severe limitations on your custody rights or even the loss of those rights entirely.

Suppose there are documented instances of child abuse, such as Child Protective Services reports, medical records documenting injuries, or testimonies from teachers or neighbors. In that case, these can serve as compelling evidence against you. Moreover, verbal or physical altercations witnessed by the child, even if not directed toward them, can also be detrimental in a custody case.

Can Lack Involvement in Your Child’s Life Be Used Against You?

Your level of involvement in your child’s life plays a significant role in a child custody order. Courts prefer to award custody to the parent who has been more involved in the child’s daily life – this includes parental responsibilities like helping with homework, attending parent-teacher conferences, taking the child to doctor’s appointments, or being involved in their extracurricular activities.

If the other parent can demonstrate that you have been largely absent from your child’s life, it may sway the court’s decision. If you can prove that your lack of involvement was due to circumstances beyond your control, like work or health reasons, the court may be more understanding.

However, if the other parent can show that your absence was due to neglect or because you were uninterested in taking part in your child’s life, it will significantly hurt your chances of receiving custody.

Legal Issues

If either parent has any legal issue, it can signal their unfit for custody. A parent must be able to provide for and protect their child and serve as a good role model for them.

Can Previous Legal Issues or Criminal Records Be Used Against You?

Previous legal issues or criminal records can come into play during a custody battle. The court considers these records because they provide insight into your character, behavior, and overall fitness as a parent. If you have a criminal record, especially if it involves charges related to domestic violence, child abuse, or substance abuse, this can negatively impact your custody case.

However, not all criminal records are treated equally. A minor offense from several years ago may not carry as much weight as more recent or severe charges. Also, the court may consider steps you’ve taken since the offense to reform and improve, such as completing a rehabilitation program, consistent employment, or involvement in community service.

Can Violations of Existing Custody or Visitation Orders Be Used Against You?

Courts take these orders seriously, and noncompliance is viewed unfavorably. Violations might include not adhering to the visitation schedule, refusing to return the child to the other parent as stipulated, or taking the child out of state without permission.

For instance, suppose you regularly return your child late from visits or frequently cancel your scheduled visitation. In that case, the court could view this as disregarding the agreed-upon arrangements and the child’s best interest. If you fail to comply with the court’s order, the other parent could file a complaint against you, which could lead to changes in the custody arrangement or even loss of certain custody rights.

However, if you have a legitimate reason for the violation, such as an emergency, you should document this and communicate it to the other parent and the court as soon as possible. Courts understand that life is unpredictable and are typically willing to make allowances for genuine, unavoidable circumstances.

Your Mental and Physical Health as a Determining Factor in Child Custody

If either parent has any issues affecting their ability to care for their child, this can negatively impact custody decisions.

How Can Mental Health Issues Be Used Against You?

Mental health issues can potentially factor into a custody battle, but it does not automatically disqualify you from having custody of your child. The key question is how your mental health affects your ability to care for your child.

Suppose you have a diagnosed mental illness that is well-managed through therapy, medication, or other treatments, and you’re otherwise able to provide a stable and loving home. In that case, your mental health condition may not significantly impact the custody decision.

However, if your mental health condition has led to instances where your ability to provide appropriate care was compromised, this could be used against you. For example, if you have experienced episodes of uncontrolled bipolar disorder leading to hospitalization or instances of neglect, the court may see this as a potential risk to the child’s well-being.

It’s also important to note that false allegations of mental instability are not uncommon in contentious child custody battles. If your ex-spouse inaccurately portrays your mental health, it’s wise to have documentation or professional testimonies ready to present an accurate picture of your mental health status and ability to care for your child.

How Can Physical Health Issues Be Used Against You?

Like mental health, physical health issues can also play a role in child custody cases. Again, the core consideration is whether your physical health impacts your ability to care for your child.

If you have a physical health condition that does not interfere with your parenting responsibilities, it may not be a significant factor in the court’s decision. For instance, if you have a chronic condition like diabetes that is well-managed, the court is unlikely to see this as a detriment to your ability to parent.

However, if you have a physical health issue that limits your ability to fulfill your child’s needs, this could influence the court’s decision. For example, if your physical health issue prevents you from performing daily tasks, participating in activities with your child, or responding to emergencies, the court may take this into consideration.

Your Living Situation as a Determining Factor in Child Custody

Your living situation is one of the variables that courts examine when deciding on child custody arrangements. This is because it can provide a glimpse into the environment in which the child will be raised.

How Can Your Living Environment Be Used Against You?

The court will consider factors such as the size of your home, whether it is safe and secure for a child if other adults live in the house (such as family members or roommates), and how much space is available for the children to play and sleep. If these measurements indicate that your home is unsuitable for a child to live in, the court may decide to award custody to the other parent or a guardian.

Can Relocation or Intent to Move Be Used Against You?

Maintaining stability and consistency, particularly in their schooling and social life, is often a vital part of a child’s upbringing, and the court will take this into account. If you plan to move away from where your children currently live or intend to move out of state, the judge may severely restrict your parental rights if it can be proven that this is not in the children’s best interests. This may also be seen as a form of parental alienation, as it could disrupt the child’s relationship with the other parent.

For example, if you intend to move far away from the child’s current home, this could disrupt their routine and potentially their relationship with the other parent, especially if the move would make regular visitation difficult. In such cases, the court may see the proposed relocation as not in the child’s best interest, which could influence the custody decision.

However, if you can demonstrate that the move would benefit the child, such as moving for a better job to improve your financial stability or relocating to be closer to supportive family members, the court may consider these factors. It’s important to note that if you plan to move, you should discuss this with the other parent and the court as soon as possible. In some cases, you may need the court’s permission before relocating with your child.

Financial Stability

Your financial stability can have a direct influence it can have on the child’s quality of life and overall well-being. This means that you must demonstrate a stable and secure source of income to influence the court’s decision.

Can Unemployment or Financial Instability Be Used Against You?

If you are unemployed or have an unstable source of income, that could be held against you in a custody hearing. The reason is that courts consider a parent’s ability to provide for a child’s basic needs, including food, shelter, clothing, and medical care. Therefore, if you are unemployed or unable to provide a stable source of income, the court may not view you as an ideal primary custodian.

That being said, courts also recognize that life circumstances can be unpredictable and understand that some parents may experience periods of unemployment due to job loss, illness, or other reasons beyond their control. However, the court will still consider these factors when making their decision. 

They may consider other forms of financial security, such as assets or investments, that could be used to help support a child. The court may also examine your available time for parenting and whether other family members could provide financial support.

Can Failure to Pay Child Support Be Used Against You?

Courts generally expect parents to fulfill their financial responsibilities towards their children. If you’ve been ordered to pay child support and have not been doing so without a valid reason, it could be viewed as a lack of commitment to your child’s well-being.

Failure in paying child support can send a message to the court that you’re either unwilling or unable to contribute to your child’s financial needs. This could potentially impact their decision about custody and visitation rights.

If you’re having difficulty making child support payments, addressing the issue proactively is recommended. This might involve requesting a modification to the child support order or seeking employment or financial counseling. Demonstrating to the court that you’re genuinely fulfilling your financial obligations can go a long way in a custody case.

Other Relationships

In child custody cases, the court doesn’t only look at your relationship with your child. Relationships with other individuals, such as a new partner, ex-spouse, or extended family members, can also be considered during custody decision-making.

Can New Relationships or Remarriages Be Used Against You?

Entering a new relationship or remarrying doesn’t automatically put you at a disadvantage in a custody battle. However, the individual you’re involved with can become a factor in the custody case if they could impact the child’s well-being.

For instance, if your new partner has a criminal history, history of child abuse, or substance abuse problems, these factors could be used against you. Similarly, if your new partner causes significant changes in your child’s life or introduces instability, the court could consider this.

Remember, the court’s main focus is the child’s best interests. If your new relationship or remarriage enhances the child’s life and provides additional stability and support, it might be viewed positively in the context of the custody case.

Can Poor Relationships with Extended Family Be Used Against You?

Extended family relationships, such as with grandparents, aunts, uncles, and cousins, can play a role in custody cases. However, poor relationships with extended family members will not usually be the deciding factor in a custody decision. That said, if these relationships are causing distress or harm to the child, they might be considered.

For example, if a parent is exhibiting aggressive behavior towards extended family members or making disparaging comments about them in front of the child, this could be a cause for concern. This type of behavior may be seen as evidence that the parent does not have proper respect for their family and will not provide a healthy environment for the child to grow up in. In such cases, the judge may consider this behavior when deciding custody.

In some cases, extended family members may also be able to provide evidence that can sway a judge’s ruling in favor of one parent. For example, if an aunt or uncle has offered to give consistent childcare to the child while both parents work full-time, this could demonstrate a commitment to the child’s well-being that one of the parents may not have.

The Wishes of Your Child

If your child is over 11, they may be asked by the court to express their preferences for which parent they want to live with. Depending on the circumstances, these wishes can have a significant bearing on the ultimate decision of the court.

Can Your Child’s Preference Be Used Against You?

Your child’s preference could be used against you in a custody battle. However, this does not mean that you will automatically lose custody rights if a child prefers to live with the other parent. The court will consider many factors, and while the child’s preference is one of these factors, it is not necessarily the deciding factor.

The court will often evaluate the reasons behind the child’s preference. For example, if the preference is based on factors like one parent being more permissive or offering more material possessions, the court may not give substantial weight to the child’s preference. However, if the preference is due to factors like stability, emotional support, and a strong bond with the parent, the court may consider this preference more seriously.

How Do Courts Consider the Child’s Preference?

When determining how to consider a child’s preference, courts often look at the age and maturity of the child. Generally, the older and more mature the child, the more weight the court may give to their preference. However, it varies from state to state, and some states have specific age requirements for when a child’s preference will be considered.

It’s also worth mentioning that in some cases, a child’s preference may not be expressed directly to the court. Instead, it may be communicated through a child custody evaluator or a guardian ad litem, professionals appointed by the court to represent the child’s best interests.


When dealing with such intricate and deeply personal matters, having the right legal support can make a significant difference. At Unbundled Legal Help, our goal is to provide that support in a manner that aligns with your specific needs and circumstances.

The lawyers in our network offer unbundled services, also known as limited-scope representation. This means they can assist with specific parts based on your requirements instead of handling your entire case. This could be anything from drafting legal documents to representing your case in court.

While our network lawyers offer affordable services, it’s important to note that their fees start from $500-$1500. It’s not free, but it’s a far cry from the hefty retainers often associated with traditional legal representation. This approach helps make legal assistance more accessible, particularly in situations like custody battles where every decision carries immense weight.

Whether it’s a question of child support, child abuse allegations, or issues with your former spouse, our network of lawyers can offer guidance. However, we understand that not all cases are suited for unbundled services. Complex cases may necessitate full representation. But for many, this approach can be a game-changer, providing necessary legal support without overwhelming costs.

Contact a budget family law attorney today and start exploring the possibilities of your child custody case.

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