Surprising Reasons Protective Parents May Lose Custody

Key Takeaways:

1. Parental Alienation Accusations: Abusers often falsely claim that protective parents are "brainwashing" their children, leveraging the debunked concept of parental alienation to discredit them in court. This tactic prolongs custody battles and undermines protective parents' credibility.
2. Mental Health Stigmatization: Abusers may exploit survivors' mental health struggles—often caused by the abuse itself—to portray them as "unfit parents." Proper documentation through therapy and mental health evaluations can counteract this narrative.
3. Strict Adherence to Court Orders: Protective parents risk losing custody if they fail to follow court orders, such as allowing visitation, even if they fear for their child's safety. Addressing concerns legally through restraining orders and emergency motions is essential to avoid accusations of child abduction or contempt.

A domestic violence survivor knows all too well that leaving an abusive partner is only the first step in escaping abuse. Unfortunately, it’s rarely the last. Many abusers will use post-separation legal abuse to continue to torment their ex-partners. This often looks like an abuser dragging the survivor to court for every little thing they can think of. The couple may be deemed “high conflict” by a judge, a misnomer that places the blame on both parties when what’s actually happening is the continuation of a pattern of power and control by the abuser. 

When the couple share children, this legal abuse can get even messier. The abuser may see an opportunity to demand full custody of the children as a way to torture his ex-partner, or even in an attempt to convince her to come back. He may denigrate the survivor’s reputation as a parent. He may paint the protective parent as “unfit” or “crazy,” jumping on any sign of fear, anxiety or frustration that the survivor exhibits in court as evidence to back up his claims. 

Sound torturous? It is, and unfortunately, it’s a battle protective parents (abuse survivors; most likely to be the mom) fight every day in family courts around the country. 

5 Ways a Protective Parent Could Lose Custody

Texas Attorney Jeff Diamant is on the front lines of this special kind of abusive torment. Diamant specializes in “high conflict” divorce and custody cases but emphasizes that he exclusively represents protective parents. He shared with us some of the ways abusers will attempt to gaslight the courts into believing the protective parent is the actual enemy.

1. Parental alienation. 

“You can predict to a 90 percent certainty you’ll be met with the response of alienation,” says Diamant, in response to a protective parent bringing up abuse in a custody trial. The overuse of alienation as one of an abuser’s favorite tactics in court stems from the debunked and widely criticized term “parental alienation syndrome.” Coined in the 1980s by a psychiatrist named Richard Gardner, the so-called “syndrome” lacks any scientific basis and does not appear in any psychiatric diagnostic manual. Abusers have been known to employ this term to convince a judge their partner is “brainwashing” a child into refusing to go to the abusive parent for visits. In reality, the protective parent is trying to do just that—protect their children. 

Diamant says the court system too often entertains this allegation with long, drawn-out evaluations. “They’ll claim you need psychiatric evaluations, custody evaluations, alienation ‘experts.’ It’s a bunch of people who feed into this stuff because it’s their source of revenue. And lawyers are propagating this also because it’s a source of billable hours for them.” His advice: choose your counsel carefully. 

“There are a lot of lawyers who play both sides of the fence on these issues. If a lawyer has ever been on the side of prosecuting a parental alienation case, you are probably in the wrong hands because you have somebody who believes this theory.”

2. Domestic violence claims without enough evidence. 

Diamant says that many survivor clients he’s worked with want to lead with the argument that their ex-partner is abusive, and therefore, obviously an unsafe person to have custody of their children, especially unsupervised. This seemingly makes sense, but the rules are different in family court. 

“It’s important to understand how provable your allegations are, look at how severe they are, and pick and choose which claims you want to make about the opposing party,” Diamant says. Unprovable claims can be used against the protective parent. They may be accused of making false claims, feeding back into the alienation argument from before. Finding appropriate and trained counsel who knows when and if it’s the best legal strategy to bring up abuse is important in a protective parent keeping custody of their children. Read “Ways Survivors Can Collect Evidence of Abuse” and “How an Expert Witness Can Help Your Court Case” for ideas on proving abuse in court.

3. Claims of mental health disorders.

Ah, the ol’ “she’s crazy” argument rears its ugly head again. This is low-hanging fruit for abusers who are likely the reason that a survivor is dealing with ailments like depression, anxiety or panic attacks. Abusers have even been known to use a survivor’s mental health-related medication against them in court, saying that being on medication renders them an “unfit parent.”

Thinking ahead here is key, says Diamant. “Being on antidepressants will not render you an unfit parent in court,” he says. “If you know you’re heading to divorce, documenting in therapy what’s going on in your marriage is key. Any good therapist should be able to diagnose you with general anxiety disorder, which is sort of a catchall for ‘I’m not having a good time right now.’” 

That diagnosis, plus therapist notes that show a mental health issue is related to the stress of partner abuse, should be ample evidence to show the survivor’s anxiety is not only being addressed by a professional but is also more present when in the company of the abuser. 

“A child being in therapy can be helpful as well,” Diamant says. “Having well-documented notes of a child’s emotional state in advance of a custody evaluation is extremely useful.”

4. Child abduction. 

As painful as it may be to imagine your child being handed over to an abusive ex for a custody visit, not following court orders by refusing these visits could be looked at as child abduction or, at the very least, contempt of court. Running away with your child will most certainly be defined as abduction. One survivor DomesticShelters.org interviewed in 2020 fled to Costa Rica with her child. She was followed soon after by her abusive ex. 

Diamant says, “It is critical to address these kinds of issues with the court as soon as possible and without delay. Emergency motions, restraining orders and protective orders are key tools here, but the worst thing to do is take matters into your own hands.”

If there is a genuine and immediate threat to a survivor’s safety or the safety of their child, the protective parent should seek help from local law enforcement. 

“But as I noted,” reminds Diamant, “there needs to be sufficient evidence and a truly clear threat or it will be used against you in the proverbial ‘false allegations’ context. And the courts unfortunately are likely to view these things through a bias towards allegations being ‘tactical’ to garner an advantage in litigation, so proceed cautiously.”

5. Not following court orders exactly. 

Always make sure to know exactly what the court has ordered be done and when. Keep on top of court dates, custody visits and other appointments, which should all be posted on the court’s website. Again, as difficult and unfair as some parts of this process may be, not following any part of a court’s order can put a protective parent’s custody at risk. 

If you’re representing yourself, you may want to review this piece: “Representing Yourself in Court” for more.