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If Both Parents are Unfit, Who Gets Custody?

Getting divorced when there are children involved can make the situation much tougher to navigate.

Not only do you have to figure out how to split up your belongings and such, but you also have to come to a decision about who will primarily care for the child after the divorce is finalized.

In rare cases, third parties can challenge the parent(s) and try to take custody of their child by presenting evidence that the parent has neglected, abused, abandoned or failed to care for the child.

However, the court presumes that the parent is the most proper person to raise the child even after a divorce.

When both parents lose their rights, a non-parent can seek and possibly obtain custody if:

  • Both parents are alive, but neither is fit enough to care for the child,

  • The custodial parent has died, and the other parent is unfit/unwilling to take custody,

  • The child has been living with the non-parent individual for a long time,

  • Both parents voluntarily abandoned their rights to the child.

If you have questions about custody rights in a specific situation, contact the Offices of Karl Brodzansky and we’ll help to ensure that your child is safe and cared for in the best way possible.

What Makes a Parent Unfit for Custody?

The court uses these factors to determine if a parent is deemed “unfit”:

  • Child Abuse History: Any court will be unfavorable to a parent if the parent has a history of abusing their children. In regard to custody proceedings, it is very challenging to overcome any child abuse charges and if a parent has an abuse history, the court will likely only allow limited visitation rights, if any.

  • Substance Abuse History: Parents who have struggled with substance abuse and addiction will need to prove long-term sobriety and reliability in order to win any type of custody. If a parent has a history of relapses, that may lead the judge to assume that the parent is dangerous and unreliable to care for the children.

  • Domestic Violence History: A court evaluator will thoroughly investigate all domestic violence claims in order to determine if a child has suffered from abuse in the past.

  • Lack of Common Sense: The parent needs to have the ability to make age-appropriate decisions for their child. If a parent doesn’t have the common sense to make responsible decisions for a child regarding things like curfew, work, friends, religious activities and media consumption, then they will likely be deemed unfit.

  • Parent/Child Communication: The court will want to know if a parent has a functional relationship with their child where the parent can easily identify the child’s needs and behavioral changes.

  • Mental Health Concerns: The court may determine that a child is at risk if a parent has an aggressive or unpredictable mental health disorder. Proof of therapy, counseling, prescriptions and other mental health factors will need to be seen by a court evaluator in order to determine the individual’s suitability as a parent.

  • Living Conditions: The court will need to assess the living conditions of the children in both parents’ homes.

  • The Child’s Opinion: The court might consider the children’s wishes in a custody case. Typically, this applies to children who can reasonably articulate their thoughts and are over the age of 12.

  • Parent’s Work Schedule: Parents who spend too much time working out of the area or working long, strenuous hours may not have the ability to adequately supervise the child. The court may want the parent to relocate/switch jobs in order to provide a more stable home environment for the child.

While every situation is different, these are some of the leading factors when the court deems a parent unfit.

If you have any questions about these factors, reach out to our team at the Offices of Karl Brodzansky.

Third Party Custody

If the court determines that both parents are unfit to care for the child, third parties may file a request for custody.

In order to request custody, the third party needs to have “legal standing” in the case. Legal standing refers to the ability to prove a connection or interest in the matter.

For example, a distant aunt who has no involvement or connection to the child won’t have a legal standing to seek custody.

However, a family friend who has been the child’s primary custodian for the last 9 years likely has satisfactory ties to file for custody.

Here are some other third parties who may seek custody of a child:


If both parents are fit, then grandparents typically don’t have any custody rights over their grandchild.

Some states grant the grandparents limited visitation rights when their own child – the child’s parent – has passed away.

Unless the parents are unfit, even grandparents who share a strong connection with a grandchild and are active participants in the child’s life cannot automatically overcome the parental presumption regarding custody.

Cases where a child has lived with the grandparent for a long period of time at the parents’ request is the only other exception. This is because the grandparent has assumed the psychological role of a parent and may already have a strong custody claim based on that role.

In New York, grandparents can only request custody if the child’s parents voluntarily surrender their parental rights and put the child up for adoption.


It’s common to see stepparents fighting for custody of their stepchildren because of the rising divorce rates.

Many states allow the stepparents custody of the child if it serves in the best interests of the child.

Many stepparents have established a psychological or close family connection with their partner’s child where they have taken on a parental role in the child’s life.

Other Non-Parents

In cases involving other non-parents, a parent’s rights must be dismissed before a non-parent individual can attempt to obtain custody.

Cases where non-parents may be granted custody include:

  • Aunts/Uncles: A biological aunt or uncle may obtain custody if they formed an emotional bond with the child and the child's biological parents neglected or abused the child.

  • Partners of Deceased Parents: This includes a girlfriend or boyfriend of the child’s biological parents who regularly cared for the child and created a strong bond with the child.

  • Foster Parents/Adoptive Parents: The foster care process begins before a parent’s rights have been dismissed. If the child’s parents give up or lose their parental rights, and no biological relative is available, the foster parents will have the opportunity to adopt the child.

For further custody information regarding your specific case, contact our team at the Offices of Karl Brodzansky.

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