Practice Areas
Addiction-Related Family Matters
For those of you in the back, having an addiction does not permanently cause you to lose custody of your child as long as the problem is temporary. Get into treatment, get a sponsor, get the chemistry figured out, and get your kids back. On the flip side, if your child’s other parent is out of control, seek help from the family court to protect your child. These things do not go away on their own, and hope is not a plan.
The important questions are usually: What is actually happening? Can it be proven? How is it affecting the child or family? Is the concern current? And what safeguards, if any, are necessary?
FAQs
How Does Substance Abuse Affect Child Custody?
When substance use affects a parent’s judgment, supervision, reliability, or ability to provide a safe environment, it can become important to conservatorship and possession decisions.
The circumstances matter. Occasional alcohol consumption is different from intoxication while caring for a child, especially a young child. It is legal to consume alcohol. The family law courts are not empowered to create law restricting a parent from freely consuming a legal product. It continues to be illegal to possess THC and marijuana products; however, the use of these products is rampant and responsible parental use does not per se pose a risk to the child.
A remote substance-abuse history, even when a child’s safety was jeopardized, followed by sustained recovery presents different issues from recent repeated incidents. We were able to obtain primary conservatorship for a client who had a year-old DWI with a child in the car by showing this parent’s renewed commitment to sobriety and safety.
One serious recent event is more problematic. We were able to get a court to suspend visits of a parent who was reportedly and inexplicably not able to be woken up from ‘sleep’ by this parent’s young children.
The most important factor in these matters is whether or not the abuse is directly causing physical or emotional risk to the child. Often it is not enough to have serious concern about an injury that has not occurred, despite being very likely to occur. Sadly, the evidence is strongest when the injury has already occurred. For example, a child wandered out onto a public road while a parent was intoxicated; a child fell into a pool while a parent was intoxicated; children are chronically late to school and a parent has a history of abusing sleep medication, a child ingested a THC product; a child was not picked up from school and a parent was found passed out at home; a parent interferes with a child’s education or medical treatment through harmful late-night disparagement directed at the school or doctors, and so forth.
How Is Drug or Alcohol Abuse Proven?
An accusation is not proof. Admissible evidence may include admissions in communications, witness testimony, criminal records, treatment history when properly available, photographs or videos, documented incidents, and alcohol or drug testing.
Different testing methods can provide different information and cover different periods of time. Testing therefore needs to be considered in the context of the particular allegation rather than treated as an automatic answer.
The conduct surrounding substance use can also be important. Missed possession, unsafe driving, failure to supervise a child, unexplained absences, or repeated inability to perform ordinary parenting responsibilities may provide context for the court.
What Can the Court Do?
- Permanently or temporarily order that access and possession are supervised
- Restrict possession and access
- Restrict a parent’s access to the child’s school or hospital
- Monitor a parent with drug or alcohol testing such as Soberlink or BACtrak
- Make a parent’s possession or access contingent on compliant drug or alcohol testing
- Delay possession pending treatment
- Create safe and/or monitored exchange locations
- Enjoin a parent from drinking or consuming illegal or controlled substances
- Order a psychological examination
- Order the production of some psychological and/or treatment records
- Order parent-child counseling to work through trauma
- Create steps for parent to work up to more possession and/or access
- Allow electronic phone access by the other parent
- Allow for discovery including detailed questioning regarding a parent’s recovery, treatment, adherence to programs
What If the Parent Is in Recovery?
A history of addiction can be important, but so can evidence of recovery. Treatment, sustained sobriety, testing history, participation in recovery programs, stable employment and housing, compliance with prior orders, and responsible parenting conduct may become relevant.
Similarly, a parent raising concerns about the other parent’s substance use should focus on accurate documentation rather than exaggeration or speculation.
Our role in an addiction-related family matter is to determine what the evidence actually establishes, whether immediate safeguards are necessary, and what arrangement appropriately addresses both the child’s safety and the parent-child relationship.
These cases are strongest when they are built around documented behavior, present circumstances, and the effect on the child.