People who suspect their children may suffer abuse or neglect at the hands of co-parents typically look for ways to prevent those parents from getting custody of the children. To that end, occasionally a parent will attempt to use the anticipatory neglect doctrine to convince the court the co-parent should not get custody rights. Here's more information about this doctrine and why it may not be a good idea to use.

About the Anticipatory Neglect Doctrine

The anticipatory neglect doctrine is a law in some states that allow a parent's previous actions towards other children to be considered when making decision about the status of another child even if that child has not been harmed. The law is generally used by child protection agencies to temporarily remove children from parents even though the parents of those children may have not abused or neglected them. Typically, there must evidence the parents are engaged in behavior that could lead the children to being harmed in some way.

For instance, a previous child died under the parent's care while that parent was under the influence of drugs or alcohol. If the parent gained custody of a second child, child protective services could use the anticipatory neglect doctrine to remove the second child from the home based on the parent's past if there is evidence the parent was drinking or doing drugs, even though the second child may be unharmed.

Using Anticipatory Neglect in Family Court

Anticipatory neglect doctrine is typically not something used in court cases involving custody issues between parents because it's generally designed for use by government child protection agencies. While it may be possible to use the doctrine in your court case to prevent an abusive or neglectful parent from getting custody of the children, the trouble is you have to show the co-parent's past behavior is relevant to the current issue of custody. You also have to prove the co-parent is engaged in behavior that may lead to harm to the child, and this may mean the co-parent's current behavior must be of a similar nature to their past behavior.

For instance, a child was harmed during a time when the co-parent was an alcoholic. In the intervening time between when that incident occurred and the current court case, the co-parent completed an alcohol treatment program. The court may rule in your favor using the anticipatory neglect doctrine if you can prove the parent started drinking while he or she has custody of the kids again since the person has proven to be abusive or neglectful while intoxicated with alcohol. On the other hand, the court may not be as quick to take the kids away if the co-parent occasionally used marijuana only when the kids were with the other parent, since it may not appear that the marijuana use is negatively impacting the children in any way.

Since the burden of proof is on you and the bar for that proof likely to be set high by the court, the chance for failure can be great. Not only could you lose your case, but the attempt to use the doctrine to take the kids away could make you look vindictive, which may color any other legal actions you may take in this area.

If you're concerned about the welfare of children in the care of a co-parent, it may be best to use other legal means to handle the situation, such as requiring supervised visitation for a period of time before custody is granted. Discuss the issue with a family law attorney who can provide guidance about securing the outcome you want.