Custody Law for Removing a Child From the Mother

By Stephanie Reid

Updated March 30, 2020

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Under the laws of every U.S. state, a child's natural or adoptive parent is presumed to be in the best position to care for and nurture the child. Historically, courts were less-than-willing to strip mothers of their custody rights, particularly in cases involving young children and babies. However, the U.S. Supreme Court has ruled it unconstitutional under the Equal Protection Clause for any state statute to favor one gender over another, including those statutes relating to child custody. In a situation in which either parent is unable or unwilling to care for the child as expected, that parent could lose custody, either through a private custody action or through involvement by a state family services agency. In cases where the state invokes custody over the child, there are detailed procedures a parent must follow in order to reunite with the child. If the procedures are not followed, the parent's rights could be terminated, making it possible for the child to be adopted by another.

Private Custody Cases

If one parent believes the other is no longer an appropriate custodial parent for the child, the non-custodial parent may petition the court for an initial custody order or a modification of a current custody order. In the petition, the non-custodial parent must set forth reasons why it is in the best interests of the child to remove the other parent's custody rights. Factors the court will consider include the child's relationship with both parents, both parents' behavior and criminal history, episodes of domestic violence, likelihood the child will adjust to living with the other parent, capacity of either parent to fulfill the parenting role and the child's wishes (if age appropriate). If the non-custodial parent is successful in removing the child from the custodial parent's home, that parent may still enjoy supervised or unsupervised visitation rights.

Placement With State Agency

In the event the custodial parent's behavior is endangering the welfare of the child, the state may intervene and assume custody over the child until the family is able to work out the issues it faces. The state may only remove the child from its mother if the child is dependent or neglected. A neglected child is one who is not receiving necessary care, sustenance, medical care, education or other care necessary for the child's well-being. A dependent child is one whose parent is unable to care for it through no fault of the parent, either due to mental illness or a physical condition. Typically, a hearing to determine whether one of these conditions continues to exist or has been rectified must be held within 30-60 days following the placement of the child in state custody.

Timeline of Case

In a case involving state custody, the state welfare office, through its social workers and case planners, must develop a case treatment plan for both the parent and child. These plans revolve around the particular issues facing the parent, including substance abuse, criminal involvement or financial stress. The child will remain in state custody (foster care) or be placed with a suitable family member during this process. Typically, if the parent is unable to comply with the care plan within a specified period, usually one year, of the child's placement with the state, the state will begin the process of terminating the parent's rights and find an adoptive home for the child.

Termination of Parental Rights

If the parent is ultimately unable to comply with the treatment plan offered by the state, the court will begin the process of terminating her parental rights with the hope of ultimately placing the child for adoption. The troubled parent has the option of consenting to the termination or contesting it. In order to terminate a parent's rights involuntarily, the court must find that the parent engaged in severe or chronic abuse or neglect, sexual abuse, abuse or neglect of other children in the household, or abandonment. Other factors sufficient to terminate parental rights include long-term mental illness, long-term alcohol or drug-induced incapacity, failure to support or remain in contact with the child, or the involuntary termination of parental rights with regard to another child.