If you’re getting a divorce and are worried that your ex won’t be a good caretaker to your children, you’ll want to take away his or her parental rights. This may be possible if you can demonstrate that your former spouse is an “unfit parent.” But what makes a parent unfit, and how do you prove it to the courts? If you can’t prove a lack of parental fitness, do you have other recourse for protecting your child?
Utah’s Parent Time Laws
Even in cases where sole custody is awarded, the non-custodial parent will usually still be granted “parent time” (i.e. visitation) with the child. In fact, Utah’s laws set strict minimum requirements for parent time depending on the child’s age. If he or she is between five and 18 years old, Section 30-3-35 of the State Legislature allows for the non-custodial parent to be with them on alternating weekends, plus one night per week from 5:30 P.M. to 8:30 P.M. If the child is younger than five, Section 30-3-35.5 allows for different portions of parent time depending on the child’s age. Additionally, Section 30-3-34.5 holds that divorcing parents have “unrestricted and unsupervised access to their children,” unless “the court finds evidence that the child would be subject to physical or emotional harm or child abuse,” in which case the court will order supervised visitation.
But what if even supervised visitation is still too dangerous?
When Can You Terminate Parental Rights in Utah?
If you don’t trust your former spouse to be around your child at all, you can seek termination of his or her parental rights. Under Section 78A-6-507(1)(c), termination may be possible if you can prove “that the parent is unfit or incompetent.”
The courts decide if a parent is “unfit” by using guidelines supplied in Section 78A-6-508(2). The courts may deem a parent unfit if there is evidence that the parent:
- Has a mental illness, mental deficiency, or emotional illness that would prevent them from caring for the child’s physical and emotional needs, both in the short-term and into the future.
- Is physically, emotionally, or sexually abusive or cruel toward the child.
- Uses drugs or alcohol “habitually” or “excessively” (i.e. substance addiction).
- Repeatedly or continuously fails to give the child proper food, education, clothing, housing, or to meet their other needs.
- Is in prison because they were convicted of a felony, and their sentence is so long that the child “will be deprived of a normal home for more than one year.”
- Has a history of violent behavior.
- Deliberately exposed the child to pornography or other “material harmful to a minor.” Under Utah’s definition, “material” could be a book, drawing, photograph, movie, sound recording, or any other form of communication.
How to Prove an Unfit Parent
The laws are relatively clear on what makes a parent unfit — but how do you go about showing a lack of parental fitness to the courts?
To begin with, do you have evidence of any of the following?
- Sexual abuse or sexual exploitation of the child?
- Injury to or death of the child’s sibling, or of any child, caused by the unfit parent’s abuse or neglect? (Injury or death not caused by abuse or neglect, such as a child accidentally breaking their arm in a sports accident, is not sufficient.)
- That the parent was convicted of a crime that demonstrates inability to care for a child?
- Any incident that disabled or disfigured the child, or put their life in jeopardy?
- That the parent ever committed, solicited, or tried to commit the murder of a child?
If not, you may be able to have your spouse’s parental rights terminated on other grounds under Section 78A-6-507. For example:
- Did the parent ever abandon the child?
- Has the child been placed into care outside the home? If so, has the parent taken any steps to correct the situation? If not, is it unlikely that the parent will provide proper care in the future? Note that all three of these conditions must be met.
- Has the parent failed to adjust to their role? This could mean making the bare minimum effort to protect, care for, or communicate with the child.
The bottom line is that the courts consider the child’s best interest when making determinations about child custody, child support, visitation, and parental rights — period. The parents’ wishes and convenience come second to preserving the child’s safety and overall quality of life.
A family law attorney can help you identify and present any evidence that your former spouse would be an unfit parent, or should have their parental rights terminated on other grounds. To set up a free and confidential case evaluation, call Utah child custody lawyer Darwin Overson right away at (801) 758-2287.