A common question in custody cases is if a mother can legally keep her child away from the father. The answer is, in a nutshell, maybe.
There are many reasons a mother may want to keep her child away from the father, and some of those reasons may surprise you. But overall, whether or not a mother can legally keep her child away from the father will be up to the judge.
What Does It Mean to Lose Custody?
When you and your ex go to court, the judge could award joint or sole legal custody and joint or sole physical custody. The father’s parenting time, or visitation, could be equal with the mother’s, or specific visitation times may be set.
If a father loses custody, this means that the child cannot live with him and visitation may be supervised or limited by the court. He may also lose decision-making privileges associated with joint or sole custody, such as where his child goes to school, lives, and other aspects of the child’s life.
Reasons a Father Could Lose Custody
Given the fact that a father can lose custody, people often wonder if a mother can legally keep her child away from the father. The short answer to this question is that without a court order, a mother alone cannot legally keep the child away from the father.
There are several reasons a court could permit a mother to keep the child away from the father, however. They include:
- Child Abuse: Child abuse is the number one reason a father (or mother) could lose custody of their child. Physical abuse such as scars, bruises, burns, and wounds aren’t uncommon. Many times, physical abuse is disguised as corporal punishment, but there is a line between proper discipline and abuse.
If you suspect your child is being abused, you should report it to the proper authorities. The law in most states is very clear – child abuse, whether physical, emotional, or sexual, is a good reason for a parent to lose custody.
- Child Abduction: You may be shocked to learn that child abduction is the second highest reason why a father or mother loses custody of their child.
- False Allegations of Child Abuse: Child abuse allegations are taken very seriously. Anytime a spouse or partner makes false allegations of sexual and/or physical child abuse against the other, they could lose custody of the child. It goes without saying that people seeking sole custody should never lie to the court, especially about child abuse. In fact, it could backfire, and the dishonest partner could end up losing custody of the child.
- Child Neglect: Another reason the court could allow a mother to legally keep her child away from the father is in cases of child neglect. Child neglect may be considered a form of child abuse, but it can be hard to prove in court.
Valuable allies to help prove child neglect include people who see your child on a regular basis such as doctors, teachers, friends, grandparents, etc. Sadly, many parents ignore signs of neglect, which is the same as ignoring child abuse. You must take action for the sake of your child.
- Domestic Violence: In some family law cases, child custody and domestic violence collide. When this happens, the focus will shift to the judge trying to determine if there has been domestic violence and whether there is evidence to support the accused losing custody of their child.
- Substance Abuse: Can a mother legally keep her child away from the father if he is abusing drugs/and or alcohol? The answer is maybe. In general, judges don’t look kindly on a parent abusing drugs and/or alcohol – even vaping can be considered substance abuse in some cases.
However, if the alcohol abuse is only occasional, it could be difficult for the mother to legally keep the father away from the child. But if he has been charged with a DWI or reckless endangerment, it may be easier for him to lose custody.
- Right of First Refusal Clauses: A right of first refusal clause in a child custody matter means that one parent must offer the other parent the first chance to take care of the child before arranging for a family member or babysitter. This clause applies to both planned and last-minute daycare arrangements, doctor’s appointments, and vacations.
You should know that a right of first refusal clause is not included in every child custody agreement and must be added to the order in order for it to apply.
Failure of either parent to honor a right of first refusal clause on a regular basis would mean that the parent is in direct violation of a court order and could be held in contempt of court and/or lose custody of the child.
- Parental Alienation: Parental alienation, depending on the severity, may cause the father to lose custody of his child. A judge could view parental alienation as not acting in the best interest of the child.
Can Violating a Child Custody Order Cause a Father to Lose Custody?
If a father violates a child custody order, it could be a minor or technical violation to a willful and major violation. Whether or not violating a child custody order is enough to keep the child away from the father is a matter for the court to decide.
Can A Refusal to Co-Parent Cause a Father to Lose Custody?
It is not unusual for co-parenting problems to arise; however, many parents are incapable of cooperating. In that case, you may be required to try a parallel parenting plan.
If the father refuses to co-parent to a point where what’s in the best interest of the child is severely impacted, a mother could file a petition in court. The court will use its discretion, but it’s possible the judge could take away some or all of the father’s joint legal custody.
Best Interest of the Child Standard
The primary test a court uses when determining if a mother can legally keep her child away from the father is what is known as the “best interest of the child” standard. This means that no matter what, a judge is always going to act in the best interest of your child – even if you and the child’s other parent don’t.
Generally, the courts believe that having both parents in a child’s life is in the best interest of the child. In order for a mother to legally keep the child away from the father, she would have to prove to the court that being with the father wouldn’t be in the child’s best interest.
Can a mother legally keep her child away from the father? The answer is not without a court order that modifies or changes custody. Also, keep in mind that this sword cuts both ways. It’s not just the father who can lose custody of their child – mothers can too, and for the exact same reasons listed above.
It’s understandable that ex-spouses don’t always get along and may lose sight of what is in the best interest of their child. This doesn’t change the fact that without a court order, you cannot legally keep your child away from the father if there’s an order in place that gives him joint physical/legal custody or visitation rights.
To find out if you can legally keep your child away from the father or vice versa, it’s always best to consult with an experienced and knowledgeable family law attorney in your state.