Grounds for Full Custody

Very rarely will the courts award full custody to one parent. What are the legal grounds for full custody? In this article we’ll explore the grounds for full custody and explore the circumstances that typically must be shown for a parent to be awarded full custody.

What is full custody?

Full custody is a child custody arrangement where one parent has the sole right to make all major legal decisions on the child’s behalf. This includes the right to make religious, medical, and educational decisions. With a full custody arrangement, one parent will have the sole responsibility of raising the child and typically, the child will spend time solely or primarily with the parent who has full custody. With full custody, the non-custodial parent may still have visitation rights with the child. Depending on the factors involved in the case, the non-custodial parent may have supervised visitation.

What is shared custody?

 In most situations, both parents will share custody of the children. Shared custody is a child custody arrangement where both parents have the legal right to make major medical, educational, and religious decisions for their children, and where both parents play a role in raising the children, including shared time with the children. Washington courts tend to favor parenting plan arrangements that ensure that the children can continue to develop a relationship with both parents, and where both parents play an active role in raising and caring for their children.

In most custody arrangements both parents will share legal custody. Generally, Washington courts favor arrangements where both parents have legal custody, that is, the right to make major decisions on their children’s behalf, and where both parents have time to develop a relationship with the child. This time may be divided in any way the parents see fit. It could involve regular visitation arrangements, split parenting time, or other unique parenting arrangements. Even when a child resides primarily with one parent, the courts want to see a parenting plan that makes time and allowances for the child to have time with the non-residential parent.

While shared custody is the norm, there are certain unique situations where one parent might be awarded full custody. What are the grounds for full custody? Here are some situations where full custody may be awarded to one parent:

• Abuse, Child Abuse, & Domestic Violence
• Substance Abuse
• Mental Illness
• Unsafe Home Environment
• Child Abandonment, Neglect, or Lack of Parental Involvement
• Relocation
• Parental Alienation

It is important to note that even if these situations are present in a custody dispute, this doesn’t automatically mean that one parent will get full custody. In fact, laws protecting individuals with disabilities may play a role in these cases as well. For example, mental illness alone wouldn’t be grounds for sole custody unless the courts find that a parent’s mental illness results in his or her inability to safely care for the child.

Let’s explore each of the factors that could result in one parent being awarded full custody. We will also explore considerations parents may want to make before thinking about seeking sole custody. Making the decision to seek sole custody can have major implications in your divorce and custody case, and if you seek sole custody without proper grounds, you could face accusations of parental alienation. This is why it is very important to speak to a divorce lawyer before taking your child custody battle to court.

Abuse & Domestic Violence

When abuse or domestic violence is present in a child custody case, developing a parenting plan can be particularly challenging and sole custody may be awarded to one parent in these situations. The courts will ultimately make child custody decisions based on the best interests of the child. According to Washington Courts, “even when children exposed to domestic violence are not the direct victims of physical abuse, the consequences of their exposure to violence can negatively impact their cognitive development as well as their emotional and physical health, which is directly relevant to ‘the best interests of the child.’ RCW 26.009.002.

According to the Washington Courts, “When the court finds a ‘history of domestic violence,’ regardless of severity, restrictions are mandatory.” The key word here is “history.” An isolated reported incidence of assault would not necessarily constitute a “history” of domestic violence or abuse, unless the incident is an “assault or sexual assault which causes grievous bodily harm or the fear of such harm.” This means that “it is possible that no mandatory restrictions will be required even if an assault has been committed or a protection order has been entered against a parent because the domestic violence was not sufficiently dangerous or threatening and also was not part of a history or pattern.”

Unfortunately, because abuse is often kept secret, and because abusers often terrorize their families, making them fearful of reporting incidents of abuse, it can be very difficult to establish a history of domestic violence until the violence becomes so severe as to cause “grievous bodily harm.” By the time the abuse reaches this stage, the parent and child may be in great danger.

Why is abuse so under-reported? In her book No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us, Rachel Louise Snyder writes, “Victims who side with their abusers during police calls do so not out of instability, as many law enforcement officers assume, but out of a measured calculation toward their future safety.” Snyder explains that leaving an abuser safely often requires “meticulous planning and preparation. Leaving is never an event; it’s a process.” Women often don’t make police reports when domestic violence occurs because they are afraid of the repercussions; a restraining order cannot physically stop an abuser from committing an act of violence, after all; it only gives a person the power to enforce “no contact.” And when women do make reports, they are also likely to recant these reports later. Snyder notes that recanted police reports are “one of the most profoundly misunderstood moments in any domestic violence situation.” Women recant because they want their children to stay alive. Victims “stay because they have developed tools, over the years, that have sometimes worked to calm down an angry partner: pleading, begging, cajoling, promising, and public displays of solidarity, including against the very people—police, advocates, judges, lawyers, family—who might be the only ones capable of saving their lives.”

According to Forbes, “courts have consistently awarded custody to the abuser and failed to heed the warnings of the abused parent, usually the mother. In part this is due to the effective use of the alienation defense by the abuser.” According to the National Resource Center on Domestic Violence, “Men who batter often have chronic but well-hidden psychological disorders and problems stemming from childhood traumas that are often not apparent to evaluators and judges; on the other hand, battered women’s psychological problems, primarily depression and posttraumatic stress disorder, appear to be reactions to the violence.” Abusers can come across looking composed and stable, while victims “may end up being labelled ‘unfriendly,’ thereby increasing the risk of losing their children.”

The key with child custody cases involving domestic violence requires the victimized parent to establish that there was a history of domestic violence. If out of self-preservation or self-protection a victim failed to make police report, victims’ lawyers may need to use other evidence to establish a history of domestic violence. According to Washington Courts, “recordings of 911 calls, medical histories, and witness statements” can be used. A threat of harm could be sufficient grounds to impose restrictions on parenting time and custody.

The courts may also investigate whether children were exposed to domestic violence or abuse, and have professionals evaluate the impact this exposure may have had on the child. According to Washington Courts, “The trauma of exposure to domestic violence has the potential of interfering with children’s emotional and cognitive development, their physical health, and their school performance and can impact their relationships with siblings, peers, and adults.” The impact can also affect the child’s relationship with the other parent: “abusive parents often seek to undermine the children’s relationships with the other parent in order to undercut the parent’s authority, and to maintain control.”

If a history domestic violence or abuse can be established, it will be considered as a factor when the court makes decisions about joint decision-making, procedures for alternate dispute resolution (and mediation), and contact between the parent and child. Domestic violence often involves an environment where one parent might be subject to coercive control. In situations like this, requiring both parents to engage in joint decision-making or alternate dispute resolution (like mediation) could put the survivor and his or her child at risk of further abuse and coercion. If a parent “engaged in physical abuse,” parenting plans will not include joint decision-making and may limit the residential time with the abusive parent. Supervised visitation may be required or only video visitation permitted. Or visitation may be conditional upon successful completion of a treatment program. If visitation is permitted, exchanges may need to take place in a public location. In some cases, the court might find that limitations on visitation isn’t enough. In this case, the court may restrict the abusive parent from having contact with the child.

Substance Abuse

Under RCW 13.34.065, parental substance abuse alone isn’t grounds for removing a child from the custody of a parent, nor would it be grounds for denying a parent the right to play a role in his or her child’s life. According to Washington Law Review, “RCW 13.34.065 also prohibits the State from using a parent’s substance abuse as the sole reason to keep a child out of their parent’s care.” Yet, RCW 26.44.195 does instruct child protective services to “give parental substance abuse great weight in determining whether a child has been abused or neglected.” So, while substance abuse in itself, might not result in the loss of custody, it is a factor that could be heavily weighed when determining what living and visitation schedule might be in the best interests of the child. Ultimately, the question that must be asked is whether shared custody with a parent who abuses substances could affect the child’s “emotional growth, health and stability, and physical care” under Washington’s best interests of the child laws.

If substance abuse results in the risk of physical harm to the child or if it impacts the parent’s ability to provide adequate care or stability for the child, the courts may consider a parent’s substance abuse when making custody decisions. The court will also consider a parent’s history and success in seeking treatment, whether the substance abuse affects the parent’s ability to care for the child, or whether substance abuse history resulted in abuse or neglect of the child.

Mental Illness

Mental illness alone cannot be used as a factor determining sole custody, but if a parent’s mental illness or cognitive impairment impacts a parent’s ability to care for their child, then mental illness may be considered in a custody case when determining custody. That said, simply accusing a former spouse or partner of having a severe mental illness and trying to use this diagnosis in court to receive sole custody won’t be sufficient grounds for sole custody.

Unsafe Home Environment

An unsafe home environment can include physical conditions, or social conditions in a home that could make the home unsafe. This can include a home so cluttered due to hoarding that the state health department would find the home unsafe or dangerous. A home with no electricity, water, or heat could also be seen as unsafe. Pest infestation that hasn’t been addressed, gas leaks, or a house with so many repair needs that the child is at risk of tripping and falling could also be seen as an unsafe home environment. If the home is unclean or unhygienic, this could also be seen as an unsafe home environment. Exposed wires, electrical hazards, and garbage could also be seen as a risk to the child. If a parent lives with people who could pose a danger to the child, or with individuals who have a history of domestic violence, substance abuse, or other risk factors, the home could also be seen as unsafe. Again, mere clutter, or differences in standards of cleanliness or lifestyle aren’t sufficient to result in a sole custody award. To receive sole custody on the basis of an unsafe home environment, a parent would need to show that the other parent’s home environment could cause a health hazard, physical hazard, or impair a child’s emotional growth. If the other parent is houseless, this could also be a factor in child custody. That said, when the home environment is unsafe, if the parent can show he or she is taking steps to remedy the situation, the courts may find ways to work with the parent to preserve custody and visitation.

Child Abandonment or Neglect or Lack of Parental Involvement

Child abandonment and lack of parental involvement is defined by RCW 13.34.030 and occurs when a parent relinquishes parental responsibilities and rights for an extended period. If your former partner doesn’t want to be involved in caring for your child, visiting your child, or making decisions for your child, despite your attempts to involve him or her in your child’s life, you may be able to receive sole custody. According to the Washington State Department of Children, Youth, and Families, signs of parental neglect include failing to take a child to school, or to provide adequate alternative educational services, failing to feed or provide medical care to the child, failing to wash, clean, or clothe the child, or failing to provide developmentally appropriate supervision and care to the child at home. Abuse of alcohol or drugs could be seen as neglect.

Relocation

Leaving the state or even the school district with a child without informing the other parent could be seen as illegally relocating the child and can even result in criminal accusations of child abduction. When other factors like abuse, neglect, domestic violence, or substance abuse are present, these cases can become very serious. If a parent plans to relocate within the context of a divorce or separation, and informs the other parent about the relocation, if the relocation results in great distance or disruption to the child’s normal routines or school schedule, sole custody may be awarded to the parent who is staying put. Visitation may be granted, however and video visitation may also be required. If you’re interested in learning more about the nuances of relocating or moving after divorce, read Truce Law’s article on moving or relocating during divorce.

Parental Alienation or Custodial Interference

If you want to seek sole custody of your child, it is important to seek the advice of a family lawyer. If you make unsubstantiated claims or accusations to receive sole custody, you could face accusations of parental alienation or custodial interference. Parental alienation is when a parent attempts to destroy the child’s relationship with the other parent through false claims or through manipulative tactics. Remember, in most cases, the courts favor that children enjoy a relationship with both parents, even when challenging factors exist. In many cases, the courts will try to work with both parents to help a parent with substance abuse issues, mental illness, or an unsafe home to find ways to remedy the situation and create a safe and stable home for the child so visitation and shared custody can take place. If you are concerned that your attempts to keep your children safe might result in an accusation of parental alienation, reach out to the family lawyers in Seattle, Washington at Truce Law today.

While a collaborative approach to divorce is not advisable when domestic violence or coercive control is present, in many other circumstances the collaborative process can help parents in challenging situations find solutions that work for their families. When parents use the collaborative divorce process, they can avoid the involvement of a guardian ad litem or the courts in their custody case. The collaborative divorce process can involve mental health professionals, substance abuse counselors, and other experts to help parents seek treatments for their problems, solutions that protect the child, and find ways to be better co-parents.

At Truce Law, we use a collaborative approach to help families address issues and concerns, helping them avoid court, while finding resolutions to promote the safety, wellbeing, and best interests of the children. If you think sole custody is your only solution, consider reaching out to us today. We may be able to help you find alternatives and plans that consider the best interests of your children while also promoting your child’s relationship with the other parent.