Drug and alcohol abuse/addiction is definitely a consideration when it comes to determining custody of a child, whether in the context of a divorce, post-divorce, a non-marital situation, child protection proceeding, or otherwise. Parenting time (visitation) can also be impacted if a parent does drugs or drinks excessively while caring for one’s child. Substance abuse and child custody do not harmoniously go together. The following will briefly outline some relevant information.
Traditional Court Approaches to Parental Substance Abuse or Addiction
- Drug and alcohol screening
- Restrict contact
- Supervised parenting time
- Rehabilitation counseling
- Narcotics/Alcoholics Anonymous
- Inpatient treatment
- Termination of Parental Rights
Judicial Analysis Factors to Abuse and/or Addiction
- Type of substance
- Local legal considerations
- Length and severity of addiction
- Number of relapses
- Previous attempts at rehabilitation
Court Determination of Parenting Time With Abuse and/or Addiction
- Age of child
- Parental motivation
- Documentary verification
- Parental communication
- Resources for safe parenting time
Applicable Best Interests of the Child Factors
- Applicable best interests of the child factors (statutory):
- Length of time child has lived in a stable, satisfactory environment and desirability of maintaining continuity
- Fault – significant risk of harm or danger
- Moral fitness – parent’s ability to (1) function as a parent and (2) set aside personal needs to accommodate child’s needs
- Mental and physical health of parties
- Substance use or abuse likely to impact best interests analysis:]
- Ability to parent
- Safety of child (physical and emotional)
- Showing of child endangerment
Additional Evaluation Considerations
- Parents’ desires for parenting time
- Child’s desires for parenting time
- Interactions of all in the home
- Child’s adjustment to home, school and community
- Parental ability to foster relationship between child and other parent
- Parents’ historical patterns of involvement with child
- Geographical proximity of parents
Forms of Evidence
- Documents (e.g. recent substance convictions)
- Witness testimony (e.g. consumes substances in presence)
- Telephone messages
- Video recordings
- Drug and alcohol testing
- Portable breathalyzers
- Substance abuse testing and evaluation
- Mental health (psych) evaluation
- Custody/parenting time evaluation
- Expert reports and recommendations
- Child’s health care providers (e.g. pediatrician, therapist)
- Illicit lifestyle
- History of violent behavior
- Private investigation
- Past admissions into rehab and subsequent relapses
- Driver records
- Arrest records
- Journal
- Video camera
- Camera
- Receipts
- Recorded conversations
- Child in camera with judge
- Guardian ad litem
- Affidavit/declaration
Substance addiction and abuse is a complex disorder characterized by compulsive drug or alcohol use that leads to significant disruptions in health, daily living, employment and relationships. Not all substance use is substance abuse. After alcohol, the substances most commonly abused are marijuana and prescription drug medication. Most people who use substances do so while functioning without major issues, and maintain a relationship with their child. When substance use becomes acute, and the parent continues using despite the consequences, the consequences become increasingly negative and that parent’s ability to make decisions has become impaired and an addiction has developed. This may trigger court intervention. Although drug or alcohol use on its own is not enough to restrict custody or parenting time, judges often find any substance use – even casual, occasional use – to be detrimental to the well-being of the child. As substance abuse often leads to poor parenting decisions or worse, a court must acknowledge this in its decision(s). A child’s safety must be ensured. All custody decisions must be shown to promote the best interests of the child.
