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

When a parent struggles with substance abuse, their ability to provide a safe and stable environment may be called into question. Substance abuse can significantly impact child custody decisions, as courts prioritize the best interests of the child. Courts may view substance abuse as a risk to the child’s well-being, leading to limited or supervised visitation or, in severe cases, a loss of custodial rights. This can be devastating to the parent and child alike. If substance abuse is affecting yourself or your co-parent, read on to learn about the potential effects that these circumstances could have on your life.

What is Substance Abuse?

Substance abuse refers to the harmful or hazardous use of psychoactive substances, including alcohol and illicit drugs. It is more than having an occasional glass of wine. In the case of alcoholism, it refers to an inability to control alcohol consumption despite the consequences, being preoccupied with drinking, and experiencing withdrawal symptoms when not drinking. Drug addiction can be understood as the use of an illicit or legal drug beyond a controlled level. Illicit drugs are substances whose production, sale, or use is prohibited by law. They include drugs like cocaine, heroin, methamphetamine, and ecstasy.

What Types of Child Custody Arrangements Are There?

There are three important terms describing different custody arrangements. The first is “physical custody.” This refers to the right of a parent to have their child live with them. It involves the day-to-day care and supervision of the child. When one parent has physical custody, the child resides primarily with them, even though the non-custodial parent might have visitation rights. Sole physical custody means the child lives exclusively with one parent, while joint physical custody means the child spends substantial time living with both parents, though not necessarily equally.

“Joint custody” is a broader term that encompasses both physical and legal custody. It means that both parents share the responsibilities and rights related to the child’s upbringing. Joint physical custody involves sharing time with the child, whereas joint legal custody involves sharing decision-making responsibilities about major aspects of the child’s life, such as education and health care.

“Legal custody” pertains to the authority to make important decisions about a child’s life. This includes decisions about education, healthcare, and religious upbringing. Sole legal custody means one parent has the exclusive right to make these decisions, whereas joint legal custody means both parents share the responsibility for making these decisions.

Determining Child Custody 

When it comes to child custody, family courts review various factors to decide whether granting a parent these rights is in the best interests of their child. Child custody is determined based on the child’s best interests, considering factors like the parents’ ability to provide a stable environment, their physical and mental health, the child’s relationship with each parent, and any history of abuse or neglect. Courts may also take the child’s preferences into consideration if they are old enough​.

If the child’s well-being and the fulfillment of their best interests are in question, the court can impose a range of restrictions, including the suspension or termination of visitation or custody. If one parent has a significant criminal history or there are signs of substance abuse, those issues can become relevant to a custody determination. A history of alcohol or drug abuse can profoundly impact your custody agreement and significantly influence the court’s decision regarding access to your child. That does not mean that a person with these types of issues will not get custody of their children. However, the person struggling with substance abuse may face obstacles they must overcome to demonstrate that the children are safe in their care.

What Custody Considerations Are There for a Parent with a History of Substance Abuse?

In order to determine if a parent with a history of substance abuse should have custody, the judge will first assess whether the issue is ongoing and if the parent can demonstrate that they can be sober. If one parent alleges the other is abusing substances, the judge may order drug and alcohol testing. Positive test results indicating the use or abuse of substance of concern can lead to specific precautions to ensure the child’s safety while allowing parenting time. 

When a parent admits to having had a substance abuse problem in the past but is not dealing with it right now, the court will look at what they have done to stay sober. For example, if the issue was a few years ago, the court will check if the parent has been or continues to be in treatment or attending support groups. If the court sees that the parent is committed to staying sober and has been actively involved with their kids since then, their past issues may be less likely to affect their chances in the current custody case.

If someone is accused of substance abuse but there is no real evidence to support it, the situation can get tricky. Many people can hide their addiction well, so it can be tough to prove the claim of alcoholism. For a parent dealing with someone who works all day but uses substances at home, it can be stressful and hard to show the impact of this behavior. On the other hand, it is also challenging for someone who doesn’t have a problem but is facing false accusations from a spouse who might be exaggerating or lying in an attempt to gain an advantage in a custody battle.

Dealing with Allegations of Drug or Alcohol Abuse During Custody Proceedings

If a parent is concerned about their child’s safety because their spouse is using drugs or alcohol, they can ask the court to order a drug test for the other parent. If the test shows a positive result, the court will look at what drugs were found and in what amount. This may affect the court’s decision on whether to grant custody or visitation rights, in accordance with keeping the child’s best interests in mind.

The use of marijuana may lead to some type of order that prevents the use of marijuana in front of the child but permits the parent to use the substance when the child is not in their care. However, the use of a drug such as cocaine or heroin, or more severe substance use evidence may have significant consequences in the amount and quality of time that the 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.

What is a Sobriety Clause?

One precaution to keep children whose parents have a substance problem safe is to incorporate a sobriety clause in the custody agreement. This clause may be included in cases where substance abuse concerns have been raised and such clauses are allowable in the region where the case is being handled.

A sobriety clause in a custody agreement stipulates that a parent must remain sober to maintain or have access to their child. It serves as a safeguard to ensure that the child’s environment remains safe and stable. 

This might include regular drug/alcohol testing and other requirements for the parent to retain visitation or custody rights. Regular testing is usually mandated until the parent consistently shows clean results. If a parent violates this clause by using drugs or alcohol, it may result in a review of the custody arrangement, potentially leading to changes in visitation rights or custody status. The clause is designed to protect the child’s well-being and promote a healthier, more secure living situation.

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

If you are a parent who has substance abuse issues, it is possible that you may receive an unfavorable custody decision. This can be devastating. Fortunately, there are things that you can do. After receiving an unfavorable custody decision due to substance abuse, it’s crucial to take specific steps to address the situation and work towards a positive outcome. First, review the court’s decision carefully to understand the reasons behind it. Having an attorney help you with this process can help you understand what services or plan you must comply with in order to regain or increase visitation with or custody of your child. This will help in identifying areas for improvement and planning your next steps. Your attorney can also provide guidance on how to appeal the decision or modify the custody arrangement based on your progress and changed circumstances.

The court mainly wants to make sure kids have a meaningful and safe relationship with both parents. There are ways to make this happen without cutting off the parent with a substance abuse issue completely. Often, this involves a “step-up” parenting plan. Basically, the parent starts with limited time with the kids, and as they show they’re staying sober and committed, they gradually get more time. This step-by-step approach can go on for as long as needed and helps show to other parents or guardians and the court that progress is being made. It also prevents a parent who is still struggling with sobriety from getting more time too soon, keeping the kids safe.

A judge will only give you so many chances and so much time to prove you’re serious about getting better. In some cases, a parent with a substance abuse issue might not get past the first step because they’re still struggling or haven’t fully committed to sobriety. At some point, the court might decide that it’s better for the child to not have an unreliable parent around if they can’t improve.

It is imperative that you seek professional help to address any substance abuse issues. Enroll in a treatment program, attend support groups, and follow any recommendations for rehabilitation. Document your efforts and progress, as this evidence can be crucial in future court hearings.

You also should focus on rebuilding your relationship with your child. Show consistent, responsible behavior and ensure your home environment is stable and nurturing. 

Finally, maintain open communication with the other parent and adhere to any court-ordered visitation or custody arrangements. Demonstrating commitment to change and focusing on the child’s best interests can positively influence future custody decisions.

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

Our firm has helped thousands of families navigate family law cases. 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. If you are facing custody concerns due to a history of substance abuse that either you or your soon-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 and their ultimate well-being at the forefront of custody considerations.