Child custody cases are complicated and emotionally straining. If you believe that your children are unsafe with or not properly cared for by your co-parent, you will have significant concerns about how the case turns out. You need an experienced Topeka child custody attorney to help you review your situation and determine whether your co-parent can be deemed unfit for custody.

How Does a Topeka Family Court Decide That a Parent Is Unfit?

When the court determines or approves a custody arrangement, its goal is to protect the child’s interests above all else. In Kansas, the court prefers joint custody between parents, where each parent has the ability to make decisions for their children, and children spend meaningful time with each of their parents. This is assumed to be in the child’s interests unless other factors show otherwise. The fitness of each parent is one such factor.

If a parent is deemed unfit, it is not because their parenting isn’t perfect. A parent is considered unfit when they are unable or unwilling to properly care for a child’s needs and safety. To determine if a parent is unfit, the family court will review some of the following factors:

  1. A parent’s mental illness or physical disability prevents them from caring for their child’s physical, mental, and emotional needs. Having a mental illness does not immediately make a parent unfit. This applies when a parent is neglecting or causing harm to a child because of their disorder or disability.
  2. A parent’s substance abuse disorder of alcohol, narcotics, or other dangerous drugs is continued and untreated. A substance abuse disorder is grounds for unfitness if it prevents a parent from providing for their child’s basic needs.
  3. Any crimes against children, including a parent’s physically, emotionally, or sexually cruel or abusive conduct toward a child.
  4. A parent’s neglect of a child, including physical, mental, and emotional neglect. This includes failing to provide for a child’s basic needs, such as shelter, a clean environment, food, and clothing.
  5. A parent’s abuse of a child includes physical, mental, emotional, and sexual abuse. Parents found to have abused their child will lose custody rights, parental rights, and possibly all rights to visitation.
  6. Whether a parent has been convicted of a felony or is currently imprisoned.
  7. Any unexplained material harm, including injury or death, to a child, stepchild, or another child under the parent’s care.
  8. Whether reasonable efforts have been made by relevant public and private agencies for familial rehabilitation and if those efforts have failed or succeeded.
  9. A parent’s efforts to alter their circumstances, actions, or living conditions to meet the needs of the child. Parents should make an effort to have involvement in their child’s life and provide for their needs. If parents are unable to provide for those needs, or fail to make efforts to do so, they may be considered unfit.
  10. If a child has been out of home placement because a parent acted or failed to act in certain ways, and a parent fails to visit, care for their child in their home, failed to follow a court-ordered parental plan, or failed to pay child support.

Based on these factors, the court will consider decisions such as whether the parent’s parental rights should be terminated and which parent or third party should be a child’s permanent custodian. There must be clear and convincing evidence that a parent is unfit due to their actions or condition and that this is unlikely to change in the future.

If you are one parent claiming that your co-parent is unfit, you must present this evidence to the court. An attorney can help you gather and present the necessary evidence.

How Fitness Affects Custody

If one parent is found unfit, the other parent will be given sole legal custody of their children. The unfit parent may lose the right to custody, may lose parental rights, and may have limited or supervised custody. If both parents are found unfit, the court may then consider third-party non-parental custody, such as with other relatives.


Q: What Is an Example of a Failure to Co-Parent?

A: Co-parenting requires significant communication and cooperation between co-parents, so failing to do this is a failure to co-parent. If your co-parent does not talk with you about important issues, fails to return your communications, or even uses a child to deliver messages, this is insufficient communication for effective co-parenting.

Failure to co-parent can also include other, more extreme actions, such as preventing a child from contacting you or seeing you and interfering with the set parenting plan. This may require contempt of court proceedings.

Q: What Should You Not Say During a Custody Battle?

A: It’s important not to talk badly about your spouse, specifically online, in public, or where your children can hear you. It’s completely understandable and common for parents going through a litigated custody battle to have negative feelings about each other and the process. However, while it’s healthy to discuss these negative feelings, be mindful of when you express them.

Talk with friends and family you trust, ideally in private settings, or find a therapist. Complaining about your spouse in front of your children could result in accusations of parental alienation.

Q: Who Wins Most Child Custody Cases?

A: There is a misconception that custody cases favor the mother of the child because there used to be laws that enforced this preference. However, custody cases are unique today, and both parents have equal parental rights and equal opportunity to secure custody. There is no gender preference when determining custody, and the child’s interests are the priority.

In Kansas, the court prefers joint custody, meaning that neither parent “wins” custody. However, if one parent is deemed unfit to care for their child’s needs, the other parent may be awarded sole custody.

Q: How Long Do Most Custody Battles Last?

A: A custody battle may last from a month to a year or even several years. Each custody case will have its own timeline, and your attorney can give you a personalized estimate. When a custody case is litigated, it is likely to take longer than if it is mediated. Claims of unfitness, accusations of domestic violence, and other legal issues can further lengthen the proceedings.

An attorney is helpful to expedite the process, but the focus should be on the children’s interests, even if the case takes significant time to resolve.

Contact Stange Law Firm

Whether you are worried about your co-parent getting custody or are facing claims of being an unfit parent, you need a qualified family law attorney. Contact the team at Stange Law Firm for help today.