How Alcohol and Drug Use Affects Custody Decisions

Find out when parents may lose custody or visitation rights because of their substance abuse.

By , Legal Editor
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If you believe that your child's other parent is abusing alcohol or drugs—or you're the one being accused of substance abuse—you'll want to know how that could affect custody and visitation. Moderate drinking usually doesn't get in the way of a parent's ability to take good care of a child. But a parent's habitual, excessive drinking or other substance abuse can pose a danger to children. Learn how judges deal with these issues in custody cases, and how to get a change in custody or visitation because of substance abuse or recovery.

When Do Courts Get Involved in Child Custody?

Courts play a role in decisions about child custody and visitation (sometimes called parenting time) in various situations, including when:

  • parents are getting divorced
  • unmarried parents have a legal dispute about custody of their children
  • divorced or unmarried parents request a change in the current custody orders, or
  • child protective services or a similar agency files a petition with the juvenile court (in what's usually called a "dependency" case) based on allegations of child abuse or neglect.

This article will focus on the role of substance abuse in custody disputes between parents in family courts, rather than dependency cases in juvenile court (which have their own procedures and rules).

Overview of Child Custody

The most important thing to understand about custody cases is all states require judges to make their decisions based on the children's best interests. It's also important to understand the difference between legal and physical custody. Legal custody refers to the parents' authority to make important decisions about their children's care and upbringing, such as medical care and education. Physical custody refers to where the children will live. Within each of those categories, one parent may have sole custody, or both parents may have joint custody.

Traditionally, one parent would have sole physical (and often legal) of the children after divorce, while the other parent would have visitation with the kids. These days, it's more common for judges to award joint legal custody and at least some form of joint physical custody (often called shared parenting time). State laws and courts recognize that it's usually in the best interests of children to have strong relationships with both parents after divorce, and for both parents to be involved in their children's lives—unless there's a reason that would be harmful to the kids.

When Do Judges Consider Substance Abuse in Custody Decisions?

State laws typically spell out a long list of factors that judges must consider when they're deciding on custody arrangements that would be in the children's best interests. In some states, the list specifically includes consideration of a parent's substance abuse. For example:

  • California law requires judges consider either parent's "habitual or continual abuse" of alcohol or certain prescribed drugs, or the habitual or continual illegal use of certain drugs. And if a judge awards sole custody or unsupervised visitation to a parent despite allegations of substance abuse, the judge must explain the reasons for that decision. (Cal. Fam. Code § 3011 (2023).)
  • Arizona law requires judges to presume that it's not in the child's best interests for a parent with a recent history of substance abuse to have sole or joint legal decision-making (legal custody). The presumption applies when the judge has found that the parent has abused drugs or alcohol, or has been convicted of a drug offense or a DUI, within 12 months before a custody request was filed. But a judge may decide that the parent has overcome the legal presumption based on evidence such as negative drug tests for the previous five years. (Ariz. Rev. Stat. § 25-403.04 (2023).)

But even when laws on child custody don't specifically mention substance abuse, states typically authorize judges to consider any circumstances that are relevant to the child's best interests. Most judges would probably conclude that it's not good for a child's physical safety and emotional well-being to be in the care of a parent whose behavior and decision-making are affected by a substance abuse disorder.

So if there's convincing evidence that a parent has a habit of drinking excessively, driving under the influence, or using illegal drugs, the judge will almost certainly take that into account when deciding which parenting arrangements would be best for the children. But that doesn't necessarily mean the judge will strip that parent from any parenting time or decision-making authority. Instead, judges will usually try to find ways to protect the children while visiting with the substance-abusing parent (more on that below).

Can Parents Lose Custody for Drug Use or Alcoholism?

Not only may a parent's substance abuse factor into initial custody decisions, but excessive drinking or drug use could also play a role after the divorce or other custody orders are in place. If a parent with sole or shared custody (or even just visitation rights) begins to show worrying signs of substance abuse that could endanger the child, the other parent may go back to court to request a custody modification.

The specific requirements vary from state to state. In general, however, if you want to change the current custody orders, you'll have to show that:

  • there's been a substantial change in circumstances, and
  • the modification you're requesting will be in the child's best interests.

If you suspect that your co-parent's alcohol or drug use has changed significantly, or if you've only recently discovered substance abuse that was previously hidden, you'll need evidence to support those suspicions (more on that below), as well as evidence of the potential harm to your child. If that evidence convinces the judge that a modification is warranted, the judge could change where the child lives, limit the substance-abusing parent's time with the children, or place restrictions on visitation. A parent might also lose sole or shared legal custody, if the substance abuse is serious enough to impair that parent's decision-making abilities.

Substance abuse may also lead to reports of child abuse or neglect. If a juvenile court removes a child from the parent's custody in dependency proceedings, that parent will generally have a certain period of time to get treatment and take other actions (such as regular drug testing or alcohol monitoring) to convince the judge that it's safe to return the child to that parent's care. But if the judge finds that those "reunification" efforts have failed, the parent could not only lose custody—but could be stripped of all parental rights over the child.

Can You Lose Custody Because of a DUI?

If you've been convicted for driving under the influence of alcohol or drugs, that could be used against you as evidence of a substance abuse problem that might endanger your children. It's not very likely that one simple DUI, on its own, would lead you to lose custody or visitation rights. But some aggravating factors could lead to that result, including when you:

  • had a child in the car while you driving under the influence
  • had a very high blood alcohol concentration (BAC), or
  • have had repeated DUI convictions.

Visitation Conditions for Parents With Substance Abuse Problems

Because of the recognition that children are usually better off when they have continuing relationships with both of their parents, judges very rarely cut off all contact between a parent and child just because of the parent's substance abuse. Even if there's convincing evidence that it's potentially dangerous for the child to stay overnight with that parent, a judge will typically allow visitation with restrictions or conditions, such as:

  • supervised visitation, often with a social worker or other reliable monitor in the room at all times
  • a requirement that the parent participate in an appropriate type of treatment or rehabilitation, including AA or NA, and
  • regular drug testing or alcohol monitoring.

Often, these conditions will be for a certain period of time and may be lifted if the parent shows success at treatment and evidence of ongoing sobriety.

How Does Drug or Alcohol Rehabilitation Affect Custody?

If you have custody of your children and decide to go into a residential treatment program, you'll obviously have to arrange for the children's care while you're gone. You might be able to make temporary, informal arrangements, as long as you and your co parent can agree (and there isn't an active court case dealing with custody). Otherwise, however, you run the risk of losing custody, at least temporarily.

That said, if you've lost custody or visitation rights because of substance abuse, successful rehab treatment could help you regain those rights in the long run. Just as your co-parent may ask a judge to change custody because of your alcoholism or drug use, you may also go back to court and request more parenting time based on evidence that you're in stable recovery and are ready to take good care of your children.

Does Recreational Drug Use Affect Child Custody?

Because judges may consider any factors that they believe are relevant to the child's best interests, they have a lot of leeway when deciding whether a parent's recreational drug use should affect custody and parenting time. Even if a parent isn't addicted, some judges may believe any use of illegal drugs is evidence that the parent is unfit—particularly if the parent is convicted of illegal drug possession.

But what about legal drugs? If you live in one of the states that have legalized recreational cannabis, could your casual use of marijuana count against you in a custody dispute? It depends, not only on the custody laws in your state but also on the judge and the particular circumstances in your case. For example, a judge is likely to conclude that you've been endangering your child if you:

  • leave cannabis gummies in a place where the child could find and eat them
  • expose the child to second-hand marijuana smoke, or
  • show up in your car, obviously high, to pick up your child for parenting time.

Legal medical cannabis use won't usually affect custody rights as long as you have a documented medical need and you use it responsibly, in a way that doesn't put your child in harm's way.

How to Prove Substance Abuse in Custody Cases

If you want to limit your ex's parenting time because of alcohol or drug abuse, you'll need evidence to support your claims. This evidence could include:

  • records of run-ins with law enforcement, including convictions for disorderly conduct, driving under the influence, or illegal drug possession or use
  • testimony from witnesses who've observed the parent's drinking problem or drug use
  • employment records showing negative work effects of substance abuse
  • medical records (when available, given patient privacy protections)
  • social media posts that reveal excessive drinking or drug use
  • repeated, incoherent texts or voicemails indicating that your coparent is often drunk or high
  • reports from custody evaluations on the effects of a parent's drinking or drug use, and
  • results of drug tests (more below on when testing may be required).

When May Judges Require Drug Testing in Custody Cases?

Some states allow judges to order drug testing based on one parent's accusation that the other parent is abusing drugs or alcohol. But in other states, you'll need more than a bare accusation to force testing. For instance:

  • Oklahoma law allows judges to order blood, saliva, or urine testing in any custody or visitation case. The law doesn't require any evidence of substance abuse before judges may require parents to undergo these tests. (43 Okla. Stat. § 110.2 (2023).)
  • In California, a judge may order anyone seeking custody or visitation to undergo the "least intrusive method" of alcohol or drug testing, but only if the judge has found (based on a preponderance of the evidence) that the parent has engaged in "habitual, frequent, or continual" use of alcohol or illegal drugs. However, the law makes clear that a positive test result, by itself, won't be a reason to deny or take away that custody. (Cal. Fam. Code § 3041.5 (2023).)
  • In New York, as in many states, the law allows judges to order physical or mental examinations whenever there's a dispute in a legal case about someone's physical or mental condition. So a judge may order testing when, for instance, a parent has admitted past drug use but claims to be clean and sober now. However, New York courts have held that judges may not require a parent to submit to drug and alcohol testing "virtually at the whim" of the other parent. (N.Y. C.P.L.R. § 3121; Burgel v. Burgel, 141 A.D.2d 215 (N.Y. Sup. Ct. App. Div. 1988), Johnson v. Johnson, 303 A.D.2d 641 (N.Y. Sup. Ct. App. Div. 2003).)

Alcohol and Drug Testing to Keep or Regain Custody Rights

If you're the parent who's been accused of substance abuse in a custody dispute, you may voluntarily take a drug test to disprove those claims, even if a judge hasn't required you to do so.

And if you've already lost custody or visitation rights because of your alcoholism or drug use, you may submit to regular alcohol monitoring or drug tests to show that you've been successful in recovery. In that situation, it's usually up to the judge to decide how long you must be clean and sober before you can have unsupervised visitation or increased parenting time.

How Can Parenting Agreements Address Drug or Alcohol Use?

Whenever you have a custody dispute, you always have the option of reaching a settlement agreement, rather than going to trial and having a judge decide for you. If you have any concerns about your co-parent's drinking or drug use, you may include provisions in your settlement agreement to address those concerns, such as a "sobriety clause" that requires both parents to refrain from using alcohol or recreational drugs 24 hours before and during parenting time. Once a judge has approved your agreement, it's typically made part of an official court order. then, if the other parent violates any of the provisions, you may go back to court to enforce the order.

Getting Help With Custody Disputes Over Substance Abuse

Most parents are able to work out parenting agreements, either on their own or with the help of custody mediation. But you should speak with a lawyer if you're concerned about your child's safety due to your co-parent's drinking or drug use—or if you're the one at risk of losing custody or parenting time due to allegations of substance abuse. These disputes can be difficult, emotionally and legally. An experienced child custody lawyer can explain how the law in your state applies to your situation, and can help you gather the kind of evidence you'll need to protect your children and your parental rights.

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