What is an Unfit Mother?

For today’s episode: In honor of Mother’s Day last week, we ask: do you have what it takes to be a good Mommy? Legally speaking, that is.

But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Adam Freedman
3-minute read


How Do You Prove a Mother is Unfit?

 Rachel from Tennessee asks: “What does it take to prove a mother unfit in court?”

Great question, Rachel! The short answer is that in deciding whether a mother -- or father -- is “unfit” as a parent, a court will assess a number of factors, but the overriding concern is the best interest of the child.

Then: The “Tender Years” Rule

As a legal matter, the question of a mother’s “fitness” arises in cases where the custody of one or more child is in dispute. Custody is, of course, an issue in divorce cases, and it can also come up when unmarried parents can’t agree on custody arrangements.

Beginning in the mid-nineteenth century, most American states adopted a rule known as the “Maternal Presumption” or -- somewhat more whimsically -- the “Tender Years Doctrine.” Under this rule, custody of minor children was usually awarded to the mother, unless -- and here’s where we get back to the question -- it could be proven that the mother was not “fit.” Evidence that a mother was unfit would include mental illness, alcoholism, or an abusive relationship with the child.

Now: The Best Interests of the Child

Nowadays, only a few states have a presumption in favor of the mother. Most states have embraced a standard of equality: neither parent is assumed to be a more appropriate parent. In all states, the paramount consideration in deciding child custody cases is the “best interest of the child.”

Having said that, most states’ family courts allow a preference in custody cases for the parent who can demonstrate that he or she was the child’s “primary caretaker” during the course of the marriage or relationship with the other parent. The primary caretaker rule has gained acceptance due to the evidence of psychologists regarding the bond between a child and his or her primary caretaker as very important.

Most states’ family courts allow a preference in custody cases for the parent who can demonstrate that he or she was the child’s “primary caretaker” during the course of the marriage or relationship with the other parent.

So, in custody disputes today, courts are not looking at the fitness of the mother as such, but are usually analyzing whether giving custody to the “primary caretaker” is in the best interest of the child. However, the fitness of the primary caretaker is, of course, an important consideration in determining the best interests of the child. 

It’s Not Easy Being Unfit

The bottom line is that it is usually very difficult to prove that the child’s primary caretaker – be it the mother or a father – is unfit to have custody of the child. A mother won’t be considered unfit just because she doesn’t have a complete library of Baby Einstein DVDs. Rather, there has to be some showing of endangerment to the child. The specific elements of parental fitness are a matter of state law, but they often include such factors as:

  • A history of domestic violence;

  • Excessive discipline or emotional abuse of the child;

  • A history of drug or alcohol abuse; or

  • A previous conviction for a sexual offense.

Working Doesn’t Make You Unfit

The fact that a mother works should not count against her “fitness” to have custody of her child, provided that she can make arrangements for child care while she is working.   However, if there is a major difference in workload between the two parents, the parent with the flexibility to spend significantly more time with the child might have an advantage in a custody battle.

Again, custody laws differ from state to state, and the outcome will depend on the facts of the specific case. You should always consult with an attorney when a custody issue arises.

You can send questions and comments to legal@quickanddirtytips.com.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Unfit Mother image from Shutterstock

About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).