An article by Peter M. Walzer, published on the American Academy of Matrimonial Lawyers website, addresses the issue of how fault affects the determination of custody. In it he lists a checklist of some important facts to look for in a custody case.

“The following list describes some common and some not-so-common faults that can be the basis for a change in custody. This list is not intended to cover every imaginable deviation or reason for denying custody. That would fill volumes. It is intended to give the attorney a checklist that could be used in a client interview to bring out possible undisclosed information.

The checklist that follows should be adapted for your community and judge.


1. Abandonment of the spouse and the marital home

2. Abandonment of the child to another person

3. Adultery

4. Alcohol and drug abuse

5. Anger in the parent

6. Attitudes of other family members toward the child

7. Criminal record of any person involved with the child

8. Clothing

9. Cruelty to spouse

10. Cruelty to the child or unreasonable discipline

11. Day-care–too much or inadequate

12. Diet

13. Financial circumstances–parent too poor to take care of the child(This can backfire in cases where the other is seeking support)

14. Fitness of nonmarital partner or lover

15. Fitness of secondary caretaker (The same criteria you would apply to parents should apply)

16. Health of the child

17. Health of the parent–physical and mental (Many states will not deny custody purely on the basis of a parent’s physical health unless it would be clearly harmful to the child)

18. Inability to care for the child’s emotional needs

19. Influencing the child against the other parent

20. Lack of attention given to the child

21. Lack of warmth or sensitivity

22. Lack of health care

23. Lack of other children’s company

24. Lack of discipline

25. Lack of love for children

26. Living conditions–sordid or crowded

27. Moral misconduct of parents

28. Neglect of child

29. Parent under psychiatric care

30. School attendance

31. School quality

32. School performance (grades and behavior)

33. Sexual practices of the parents

34. Sexual relations in view of the child

35. Strange religious practices harmful to the child

36. Unwillingness to share custody

37. Uncleanliness

38. Vengefulness of the parent”

SOURCE: American Academy of Matrimonial Lawyers