How Will A History Of Drug/Alcohol Abuse Affect My Custody Agreement?

March 18, 2020 O'Connor Family Law Child Custody

When it comes to child custody, family courts review a variety of factors to decide whether granting a parent these rights is in the best interests of their child. If one parent has a significant criminal history or there are signs of substance abuse, those issues can definitely play into a custody determination.

A history of alcohol or drug abuse can significantly affect your custody agreement and influence the Court’s decision when granting access to your child. That does not mean that a person with these types of issues will not get custody of their children, but there can be hurdles that are set up that the affected person will have to “jump over” to show that the children are safe in his or her care. Because we have over 35 combined years of exclusive family law experience, our attorneys can explain your legal rights and potential options if you are concerned about how a history of substance abuse could impact the outcome of your custody proceedings.

Custody Considerations for a Parent with a History of Substance Abuse

When considering if a parent with a history of substance abuse should have custody of their child, the Judge may initially examine whether or not this is an ongoing issue or if this person can demonstrate sobriety. When one parent alleges that the other party is abusing drugs or alcohol, or has a history of substance abuse, the Judge may order drug and alcohol testing. If the tests come back positive, then a number of precautions can be put into place to ensure that parent is still able to have parenting time but that the children remain safe. A common way to protect children while maintaining parental rights is by putting a sobriety in the custody agreement which outlines drug/alcohol testing and other requirements for the parent in question to retain visitation/custody. Generally, in these types of cases, regular testing is required until that parent shows a history of clean tests.

When there is an admitted substance abuse issue that took place in the past rather than a more recent and ongoing issue, the Court may consider what steps the parent has taken to ensure their commitment to sobriety. For instance, if it was within the last few years, is the parent still in treatment or in groups to help ensure they do not relapse? If the Court determines that the parent is committed to sobriety, then the past use should not affect them in a current custody case if they have had an ongoing relationship with the children since then.

If there is an allegation of substance abuse that is disputed and there is no evidence to back up the allegation, the case can become much more complex. There are many people who are functioning addicts so there are no external signs that prove any allegations being made. In those cases, it can be nerve-wracking for a parent who has seen the day-to-day consequences of dealing with someone who can work all day, but then comes home and uses. It can also be very hard for someone who does not actually have a problem, but who has a spouse who is willing to exaggerate or completely lie in order to try to get an upper-hand in a custody matter.

Dealing with Allegations of Drug or Alcohol Abuse During Custody Proceedings

When a parent is worried about their child’s safety because their spouse is abusing drugs or alcohol, they can request that the Court mandates testing of the other parent. If a drug test comes back positive, the type and amount of the substance involved may impact the Court’s decision when determining whether awarding the parent custodial or visitation rights is in the child’s best interests. The use of marijuana may lead to some form of order that prevents the use in front of the child; however, the use of a drug such as cocaine or heroin may have significant consequences in the amount and quality of time that parent can spend with the child.

We had a case where we represented the wife who claimed to have found cocaine inside the home while her and her husband were living together, but the husband denied any drug use to the Court. He was ordered to submit to a urine screen and tested positive for cocaine. Because of this, he could only have limited supervised parenting time until he could show he had tested clean for almost a year. Had he been honest with the Court, there may have been more leniency with moving his involvement with the children forward during the case, but his credibility was shot right from the start.

If the child’s best interests are in question, the Court can impose a range of restrictions, including the suspension or termination of visitation or custody. For this reason, a parent facing allegations of substance abuse during custody proceedings or who needs help navigating the process with an ex-spouse who has a history of substance abuse should consult with one of our trusted attorneys.

What to Do After an Unfavorable Custody Decision Due to Substance Abuse

While we can help someone who has been falsely accused of having substance abuse issues during a child custody case, we also can assist a parent actually has had substance abuse issues so long as they have done or are willing to do the hard work necessary to obtain sobriety.

The main focus of the Court is usually on trying to ensure that the children can have a meaningful and safe relationship with both parents. There are a number of ways to accomplish this that doesn’t include not allowing the child to be around the parent who has the substance abuse issue. In many of these cases, a “step-up” parenting plan is involved. This means that the parent starts with more limited time with the children until he or she can show that they are being consistent and committed to sobriety.

After a certain period of time passes, that parent “steps up” and obtains increased parenting time. The steps can continue for as long and in as many phases as the parties agree upon. This type of parenting plan helps reassure both parents and the Court that the case is moving forward. It also prevents someone who continuously has set backs to move forward with additional parenting time, which keeps the children safe.

However, a Judge will only give you so many chances and so much time to show that you’re serious. We’ve seen cases where the parent with the substance abuse issue can never get past the first step because they are still in a stage where they are struggling substantially or have not actually committed to sobriety. At some point the Court will find it is in the child’s best interest to not have an unreliable parent in their life more so then a continued relationship with someone who cannot get out of their own way.

These cases are heartbreaking, but if you have a problem and you end up in a divorce or custody case, you have to make a decision whether you are going to commit to your children and your sobriety or keep using. Unfortunately, for some people and even for their children, the addiction is so strong, they do lose their children because of it.

Speak with an Attorney to Discuss How a History of Substance Abuse May Impact Custody

If you are facing custody concerns due to a history of substance abuse that either you or your to-be ex has, you should speak with our firm as soon as possible. Our dedicated attorneys at O’Connor Family Law can explain what recourse you may have in your custody case and work hard to help you reach an amicable solution that keeps your relationship with your children first and foremost. Learn more about how a history of drug or alcohol abuse could impact your custody agreement.