法律英语：114 What is an Unfit Mother?

By Adam Freedman

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.

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 overriding¹ 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 custody² 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 Presumption³” or -- somewhat more whimsically -- the “Tender Years Doctrine⁴.” Under this rule, custody of minor⁵ 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 paramount⁶ 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.
So, in custody disputes today, courts are not looking at the fitness of the mother as such, but are usually analyzing⁷ 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 parental⁸ 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 offense⁹.
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 workload¹⁰ between the two parents, the parent with the flexibility¹¹ 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。。。。。。or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 overriding   

a.最主要的

参考例句：

• Development is of overriding importance. 发展是硬道理
• My overriding concern is to raise the standards of state education. 我最关心的是提高国民教育水平。

2 custody   

n.监护，照看，羁押，拘留

参考例句：

• He spent a week in custody on remand awaiting sentence.等候判决期间他被还押候审一个星期。
• He was taken into custody immediately after the robbery.抢劫案发生后，他立即被押了起来。

3 presumption   

n.推测，可能性，冒昧，放肆，[法律]推定

参考例句：

• Please pardon my presumption in writing to you.请原谅我很冒昧地写信给你。
• I don't think that's a false presumption.我认为那并不是错误的推测。

4 doctrine   

n.教义；主义；学说

参考例句：

• He was impelled to proclaim his doctrine.他不得不宣扬他的教义。
• The council met to consider changes to doctrine.宗教议会开会考虑更改教义。

5 minor   

adj.较小(少)的，较次要的；n.辅修学科；vi.辅修

参考例句：

• The young actor was given a minor part in the new play.年轻的男演员在这出新戏里被分派担任一个小角色。
• I gave him a minor share of my wealth.我把小部分财产给了他。

6 paramount   

a.最重要的，最高权力的

参考例句：

• My paramount object is to save the Union and destroy slavery.我的最高目标是拯救美国，摧毁奴隶制度。
• Nitrogen is of paramount importance to life on earth.氮对地球上的生命至关重要。

7 analyzing   

v.分析；分析( analyze的现在分词 )；分解；解释；对…进行心理分析n.分析

参考例句：

• Analyzing the date of some socialist countries presents even greater problem s. 分析某些社会主义国家的统计数据，暴露出的问题甚至更大。 来自辞典例句
• He undoubtedly was not far off the mark in analyzing its predictions. 当然，他对其预测所作的分析倒也八九不离十。 来自辞典例句

8 parental   

adj.父母的；父的；母的

参考例句：

• He encourages parental involvement in the running of school.他鼓励学生家长参与学校的管理。
• Children always revolt against parental disciplines.孩子们总是反抗父母的管束。

9 offense   

n.犯规，违法行为；冒犯，得罪

参考例句：

• I hope you will not take any offense at my words. 对我讲的话请别见怪。
• His words gave great offense to everybody present.他的发言冲犯了在场的所有人。

10 workload   

n.作业量，工作量

参考例句：

• An assistant one day a week would ease my workload.每周有一天配一个助手就会减轻我的工作负担。
• He's always grousing about the workload.他总是抱怨工作量大。

11 flexibility   

n.柔韧性，弹性，（光的）折射性，灵活性

参考例句：

• Her great strength lies in her flexibility.她的优势在于她灵活变通。
• The flexibility of a man's muscles will lessen as he becomes old.人老了肌肉的柔韧性将降低。