How Does the Court Determine if a Parent is Unfit?

Learn how court and child protective services intervene when parents are accused of being unfit during a divorce, to ensure child safety.

What is an Unfit Parent?

Mental Illness and Substance Abuse

When it comes to mental illness and/or substance abuse, a judge needs all the fact before making a ruling. If there is a chance of harm coming to the child because of the parent’s behavior, the judge can order supervised visitations and/or award custody to the other parent. 

Factors That Can Result in an “Unfit” Ruling

Parental abuse and neglect are the primary causes for a judge to rule that a parent is unfit. Abuse can include physical, emotional, sexual, and verbal behavior. The harm caused by psychological and emotional abuse can follow a child for a lifetime.

The court will also consider neglect when ruling on a parent’s fitness. Neglect can include insufficient food for the child to develop properly, not enough clothes, or the lack of reasonable shelter.

Taking a child to a homeless shelter does not likely constitute neglect, but providing unsafe living conditions that involve insect infestations or health hazards may result in a ruling of unfitness against the parent.

A parent can also face a ruling of unfitness if they allow their child free access to guns or drugs. Moreover, in certain instances, a parent who alienates the child against the other parent may be guilty of parental neglect.

Florida considers the following factors as grounds for ruling a parent as unfit:

  1. Failure to provide adequate medical care.
  2. Failure to enroll or keep the child in school.
  3. The parent facing long-term incarceration.
  4. Actual proof of the physical and/or emotional abuse.
  5. Parental history of committing crimes or being a sexual predator or permitting someone else to sexually abuse the child
  6. Domestic violence within the household.
  7. Parental history of alcohol or drug abuse.

Proving that a Parent is not Fit

When parents divorce, one parent may well accuse the other of being unfit simply out of anger and bitterness, without any basis in fact. A judge won’t accept allegations of abuse or neglect – he or she will demand proof. This would include:

  • Actual statements from family members, teachers, friends, or neighbors – people would know the child and the surrounding circumstances.
  • Statements from professional experts such as doctors, counselors, and medical and school records.
  • A physical inspection of the home.

After reviewing the evidence presented, the judge will analyze all the facts and decide whether the parent is fit or unfit. If the ruling is unfit, the judge can give sole custody to the other parent, limit visitations, or provide for supervised contact with the child. In extreme cases, parental rights may be terminated.

If, after presenting evidence, the situation is still not clear, the judge may demand a professional third-party investigation to accumulate evidence. There are certain situations when the label “unfit” may apply to both parents. In such cases, anyone with knowledge can notify Child Protective Service, who will determine if removal of the child from the home is an option.

What Happens After Being Declared an Unfit Parent?

Parental rights run deep, and the courts do not terminate or alter them easily. To regain custody, the parent must undergo a mental fitness evaluation. The parent is usually provided with an opportunity to improve the situation, which may involve refraining from drug use and physical abuse. Provide an adequate home for the child. With the help of an attorney, the parent can return to court and ask for a new evaluation. People do change, and the court will take new evidence into consideration rather than permanently separating parent and child. In Florida, as in most states, the decision will be based on what is in the best interest of the child.


Parents have a legal obligation to ensure the emotional and physical safety of their child. If, for whatever reasons, the parents fail to do so, the courts are likely to step in to evaluate the situation. In the event that the court rules against the parents, there is a possibility that their parental rights may be restricted or terminated. As a rule, the court does provide the parents with the opportunity to prove that they have remedied the abusive situation. If a parent has been accused of child neglect or abuse, it is advisable to contact a family law attorney at the earliest opportunity.


National Hotline for Domestic Violence: 800-799-7233

For Miami-Dade, Florida Domestic Violence Victim & Related Services:

24 Hour Florida Domestic Violence Hotline: 1-800-500-1119; TTY: 1-800-621-4202

National Domestic Violence Hotline: 1-800-799-SAFE (7233); TTY: 1-800-787-3224

Florida Department of Children & Families: 1-800-96-ABUSE (22873),

 DV Shelters:

Victim Response Inc/The Lodge (305) 693-1170,

North Dade Victim Center (Safespace Shelter North) (305) 758-2546

South Dade Victim Center (Safespace Shelter South) (305) 247-4249

Coordinated Victims Assistance Center (CVAC): 2400 S. Dixie Hwy, Miami, FL 33133; (305) 285-5900

Survivor’s Pathway: 1801 Coral Way, Miami, FL 33145; (786) 275-4364

Clerk of Courts (DV Division)

Lawson E. Thomas Court House Center (main / downtown courthouse): 175 NW 1st Avenue, Miami, FL 33128 (mezzanine / M floor): (305) 349-5813

Hialeah Courthouse: (305) 520-4002

South Dade Government Center: (305) 252-5807

North Dade Justice Center: (305) 354-8736

Joseph Caleb Center: (305) 636-2415

The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

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