Massachusetts family law attorney Nicole K. Levy discusses parental unfitness in custody, guardianship and adoption cases.
In highly contested divorce and custody cases, I commonly hear parties accusing one another of being an “unfit parent”. Sometimes a parent’s use of this term simply reflects his or her frustration with the other parent. In other instances, however, the party may be expressing that they sincerely believe the children should not be left in the care of the other parent. While I have had custody cases that resulted in one parent retaining sole legal and physical custody due to behaviors of the other parent, declaring a parent to be “unfit” is rare in cases not involving the Department of Children and Families (DCF). Unfitness is a legal standard that is not tossed around lightly.
A 1932 case, Richards v. Forrest, sets the foundation for this standard. In Richards, the SJC note that “[t]he settled law, founded on express legislative policy and uniformly adhered to by this court, is that a parent is not to be deprived of the custody of his child in the absence of a finding that he is unfit”. Identifying unfitness, at least in the 1930’s, involved serious misbehavior on the part of a parent:
As applied to the relation of rational parents to their child, [unfitness] usually, although not necessarily, imports something of moral delinquency. Violence of temper, indifference or vacillation of feeling toward the child, or inability or indisposition to control unparental traits or character of conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.
Since it became law, the fitness standard set forth in Richards has been cited dozens of times in Massachusetts cases. The case’s continued relevance reflects that reality that even today, Massachusetts courts do not make determinations of parental unfitness lightly. A parent who is declared “unfit” by a Court stands to lose not just parenting time, but their parental rights altogether. Indeed, a parent who is declared unfit by a court can see their parental rights suspended completely in a guardianship case, or terminated altogether in an adoption without consent proceeding.
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Whether in a divorce or custody case (or more commonly a guardianship or a minor or care and protection case), a court does not make an order or judgment to deprive a parent of his or her parental rights with ease. Custody of one’s children is considered a constitutionally-protected “fundamental right”. However, it is important to understand what “custody” means in the context of parental unfitness. In a divorce or case involving unmarried parents, courts have found that assigning “primary” custody to one parent does not deprive the non-custodial parent of his or her fundamental custodial rights. In contrast, cases involving parental unfitness generally involve granting custody (or even full parenthood through adoption) of a child to a non-biological parent.
Given the complexity of these cases, courts have wide discretion in what they utilize to determine unfitness. The factors set forth in Ch. 210 § 3 (c) for determining parental unfitness include whether:
- the parent abused or neglected the child or another immediate family member;
- the parents have maintained contact with the child for the previous six months;
- the child who is four or older, has been in foster care for at least twelve of the preceding fifteen months, and cannot be returned to his or her parents’ care;
- the child who is under four, has been in foster care for at least six of the preceding twelve months, and cannot be returned to his or her parents’ care;
- the parents can provide proper care for the child;
- the child has formed a strong positive bond with his or her substitute caretaker that cannot be broken without harm to the child, and the parent is unable to alleviate the harm;
- the parent has put forth effort to remedy the conditions that led to the child’s removal from the home;
- the child, or another child in the home, has been subjected to severe or repetitive physical, emotional, or sexual abuse or neglect by the parent;
- the parent willfully failed to visit the child;
- the parent willfully failed to pay support for the child;
- the parent has a condition that is prolonged and that will prevent him or her from caring for the child;
- the parent is incarcerated and cannot provide a home for the child; and,
- there has been a prior pattern of neglect or misconduct, or an assault resulting in serious bodily injury to the child.
Parental Unfitness vs. Best Interest of the Child: Different but Related Standards
Most Massachusetts residents understand that child custody cases involving two biological parents are determined based on the “best interest of the child” standard. The theory behind the best interest standard is that the law should focus on a child’s needs, not on each parent’s “rights”, where children are not property. Findings of parental unfitness are rare in traditional custody cases, because a court can simply assign primary custody to the better parent using the less rigorous “best interest of the child” standard, which does not require the court to find that the non-custodial parent is wholly unfit to care for a child.
Cases involving non-parents are different, however. For a court to grant custody to a non-parent guardian or foster parent, it is not enough to show that the award be in the child’s best interest. To elevate the rights of a non-parent over those of a parent, the Court must find that the parent is unfit. Does this mean that the “best interest of the child” standard is irrelevant in cases involving non-parents? Not exactly.
In many cases, courts must engage in a difficult weighing process between the best interests of a child and the fundamental rights of biological parents. The result is a sometimes awkward standard for parental unfitness, which is affected by – but not completely defined by – the children’s best interests in a given case. In a 2007 case, Guardianship of Estelle, the Appeals Court described the subtle interrelationship between unfitness and the child’s best interests:
The question, then, is how to balance a parent’s capacity to care adequately for a child (i.e., his or her “fitness”) with that child’s “best interests,” given the child’s current circumstances. Fitness is not merely the absence of abuse or neglect; nor is it a set of abilities or characteristics that are the same in all circumstances. On the one hand, we defend the right of a parent to the custody of his or her child, yet we recognize that the right will not be enforced if it results in harm to the child, in other words, if the parent is ‘unfit.’ . . . At the same time, the ‘best interests of the child’ is the touchstone of the analysis.
A cynic might say that a definition of parental unfitness that uses the best interest of the child standard as its “touchstone” is basically indistinguishable from the ordinary best interest of the child standard. In some ways, this may be true. However, any lawyer who has tried a guardianship case will tell you that there is a big difference between proving parental unfitness and custody under the best interest of the child scenario. In a “best interest” case, the lawyer may directly compare the two parents, and need only show that one parent presents a better home than the other. The lawyer can spend as much time highlighting the positive aspects of one parent as he or she focuses on the negative aspects of the other parent.
In a case involving parental unfitness, the negativity spikes. It is not enough to show that the guardian or foster family provides a nice home for the child. The lawyer must affirmatively prove that the biological parent is defective. The focus is on the deficiencies of the biological parent, first and foremost, and the evidence is tailored to attack the parent’s abilities and history. The tone is quite different from a typical custody case, in which attorneys often try to focus on why one parent’s “positives” outshine the other’s. Parental unfitness is a negative label that requires a laser-like focus on the biological parent’s inadequacies.
(An interesting point about the relationship between fitness and the child’s best interest: a parent may be fit to care for one child, and unfit to care for another. For example, a parent may be found to be unable to adequately care for a very young child, or a child with special needs, while retaining the ability to care for an older or more developmentally mature child. A determination of unfitness is not necessarily a blanket moratorium on that parent’s ability have custody of all of his or her children; the relationship between the best interest of the child and the unfitness of the parent is a complex one.)
A frequent area of confusion in Massachusetts arises in guardianship vs. adoption without consent. In short, the answer is: a guardianship represents a more temporary and less severe means for addressing parental unfitness, while adoption without consent proceedings represent a more severe and permanent outcome: the permanent termination of the unfit parent’s parental rights. Both the Massachusetts guardianship and adoption without consent statutes provide for a non-biological parent to care for a while whose parent(s) are unfit. However, there are several major differences between these proceedings.
Most Massachusetts guardianship of a minor cases take place in Probate and Family Courts, which are the same courts that handle child custody proceedings affecting biological parents. Like motions for temporary orders in traditional custody cases, the guardianship statute permits non-parent guardians to seek temporary custody of children for 90-day intervals with a relatively minimal showing of proof. Unlike traditional custody hearings, however, biological parents in guardianship cases have a right to be appointed free attorneys.
In contrast, most Massachusetts adoption without consent proceedings take take place in Juvenile Courts. DCF is generally heavily involved in these cases, which typically involve DCF removing a child from a home, placing the child with a foster family, and eventually petitioning the Juvenile Court to allow the foster family to adopt the child after the biological parent fails to improve their situation. Adoptions without consent cases involve the appointment of attorneys on behalf of each biological parent and each child involved. Although foster parents generally won’t receive court-appointed attorneys, DCF lawyers often serves as de facto counsel for the foster parents, where DCF is generally the entity asking the Court to allow the adoption.
Technically, Probate and Family Courts have jurisdiction to hear adoption without consent cases, just like the Juvenile Courts. However, DCF is generally far more active in the Juvenile Court, and the proceedings that involve DCF’s initial removal of a child from an unfit home – i.e. care and protection proceedings – almost always originate in Juvenile Court.
Despite the many similarities between guardianship and adoption without consent cases – which include a shared definition of unfitness and each involve granting parental rights to non-biological parents – the different cultures and procedures that exist between the Probate and Family Court and Juvenile Court make these cases quite different to litigate in practice. In Juvenile Court, the judges are very familiar with the procedures, DCF documents the history of the family through written reports, and each party is generally represented by an attorney who understands the highly-choreographed process. In Probate & Family Courts, non-biological parents who seek guardianship of a minor are often unrepresented by counsel, unaided by DCF reports or attorneys, and judges squeeze the cases in between traditional custody and visitation cases involving fit parents.
Although the primary question in traditional custody cases is the “best interests of the child” and not “parental fitness”, many of the issues highlighted in Ch. 210 § 3 (c) apply just as much to custody cases as guardianship or adoption without consent cases. A parent’s drug abuse, child endangerment or abandonment, and/or domestic violence are major factors in custody cases involving two biological parents. Although a court determining custody may not think in terms of fitness or unfitness, bad parenting remains bad parenting, no matter what terminology is involved.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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