How Alcohol and Drug Use Affects Custody Decisions

Learn how alcohol and drug use can affect a custody case.

By , Retired Judge

A child's best interest is paramount in every custody case. When deciding how parents will share custodial rights and responsibilities, courts strive to ensure that a child's health, safety, and welfare come first. While casual and infrequent use of alcohol may not be a factor, an ongoing addiction to drugs or alcohol can certainly affect a parent's ability to care for a child. Find out how courts handle child custody cases under these circumstances.

Overview of Child Custody

Many people have preconceived notions of the meaning of the terms "custody" and "visitation." One parent has custody of the kids and controls their upbringing, and the other parent gets visitation rights. All or nothing. Case closed. If that's your belief as to how custody works, then you're likely in for a surprise.

Many states have been revising their laws to foster a more inclusive relationship between parents and their children in situations involving parental separation or divorce. That's because greater continuing participation of both parents in a child's life usually makes for a better overall outcome—on many levels—for all concerned. States are so focused on this approach, that a number of them have stopped using the words "custody" and "visitation," opting for terms like "parental responsibilities" and "parenting time." That said, many of the basic principles of custody remain intact. For purposes of this article, we'll continue to refer to "custody" and "visitation."

Custody is comprised of a number of concepts, the main ones being "legal custody" and "physical custody."

Legal Custody and Physical Custody

"Legal custody" refers to a parent's right to participate in the decision-making process regarding a child's upbringing and welfare, on subjects such as education, religion, and non-emergency medical issues. Whether a child will attend a public or private school is an example.

"Physical custody" refers to where the child is going to live.

Joint Custody and Sole Custody

Legal custody and physical custody can be further broken down into "joint custody" and "sole custody".

With "joint legal custody", both parents share in making decisions regarding the significant aspects of a child's life. "Sole legal custody" means only one parent gets to make those decisions. In keeping with today's push for enhanced parental participation, joint legal custody is by far the preferred outcome of custody cases.

In cases of "joint physical custody", the child resides with both parents for certain periods of time. This can range from a couple of days a week with one parent and the balance with the other, to a child literally living with each parent six months a year. During those periods when the child is living with one parent, the other parent will spend time with the child based on a schedule worked out between the parents or ordered by the court.

If a parent has "sole physical custody," the child resides exclusively with that parent. The other parent will ordinarily have visitation rights with the child, again on an agreed upon or court-ordered schedule.

Determining physical custody can be more problematic than legal custody because there tend to be more obstacles to overcome. Often, it's a matter of logistics. For example, if the parents live a significant distance from each other, the issue of a child's school attendance can crop up.

You're not going to want to uproot a child in the middle of a school year to accommodate living with the parent who's outside the district. That same reasoning applies to the child's extra-curricular activities, such as sports or music lessons. In these situations, parents need to be flexible. So, perhaps the child stays with one parent during the school year, and the other during the summer and extended school breaks.

The most important thing to note when discussing custody or visitation, is that the court will base its ultimate decision on what is in "the best interests of the child."

Drug or Alcohol Use and Child Custody Decisions

Substance abuse is a scourge, and a parent's losing custody due to drug addiction or alcoholism occurs all too often. But before that can happen, a court has to be convinced that substance abuse exists. If a parent denies having a problem, proving alcohol or drug abuse in custody cases can pose a challenge, presenting a classic "he said, she said" scenario. So if you're in a custody battle with a drug addict or alcoholic, you'll have to take measures to expose the other parent's condition.

There are any number of ways you can prepare to prove the existence of substance abuse. For example, if you've personally witnessed the other parent misusing alcohol or drugs, you should document it. Likewise, you can try to obtain proof from others who have seen it first-hand. Presenting evidence of run-ins with the law, such as convictions for drug-related offenses or driving under the influence, could certainly bolster a case.

As indicated above, the court's primary concern is a child's best interest. But, by the same token, the court can't lose sight of parents' rights to interact with their children. In the end, dealing with a substance abuse case is a balancing act, with the judge weighing the various elements in attempting to reach a decision.

Is a Parent Currently Abusing Alcohol or Drugs?

If the answer to that question is yes, parents who are engaged in this activity would have a difficult time convincing a judge that they're in a position to make reasoned decisions about their child's upbringing. And it's even less likely that they could present a solid argument that their child should be living with them. In situations like this, the court is almost guaranteed to award the non-impaired parent sole legal and physical custody.

You should know that if a parent is a substance abuser, that doesn't necessarily mean the parent can't have contact with the child. A court could allow visitation, with conditions attached. For example, a judge could order a parent who abuses alcohol to refrain from drinking for a period before and during visitation. Of course, the judge would want some evidence that the parent can, in fact, abstain during that period.

If the court believes a parent's condition is so bad that the parent can't be trusted to be alone with the child, it can order "supervised visitation." In that case, visitation would have to be in the presence of a third party, such as a trusted friend or family member. In cases where a parent's condition could pose imminent physical or emotional harm to the child (much like situations involving domestic violence or child abuse) the court could order parent-child contact to take place at a court-approved facility, staffed with trained personnel.

Finally, if a parent's substance abuse is so chronic and toxic that it could irreparably harm the child's safety and welfare, a court can terminate that person's parental rights.

Is the Addicted Parent in Recovery?

This type of case isn't as clear cut as when a parent is actively engaged in substance abuse. Here, the parent is making an attempt to address the problem. But before making a decision, a judge is likely to dig into the status of the recovery, as well as the parent's history.

Let's say a parent is suffering from alcoholism. Child custody is an issue in the divorce. The parent argues that he's now sober. But the evidence reveals that the period of sobriety has been short. And he's attempted recovery several time in the past, only to continually relapse. There's a good chance the court will treat this like it would a case of current substance abuse.

If, on the other hand, a parent has been sober for a considerable period, and the court has been assured by someone such as a social worker or addiction counselor that the parent is making substantial progress in dealing with the substance abuse problem, there's a better chance the judge will consider joint legal custody. Depending on how far along the parent is into recovery, the judge may even decide joint physical custody is warranted.

Judges have considerable leeway in making these decisions. So it's not unusual for them to condition a custody arrangement on a parent's continued counseling, drug testing, or participation in groups such as Alcoholics Anonymous or Narcotics Anonymous. The judge could also request regular updates on the parent's progress.

It bears repeating that the best interest of the child outweighs all other considerations.

Custody Arrangements Can Be Modified

Court orders involving children are always subject to modification, provided you request it from the court. You can't change a court order without a judge's permission.

There can be any number of reasons for requesting a modification. Often it's because the child's needs have changed. But developments in a parent's life can be just as relevant. It's important to note that in order for a court to alter an existing custody or visitation order, most states require a showing of a substantial change in circumstances from the date the court issued the current order.

In that respect, a parent's suffering the negative impact of alcohol or drug use could qualify as a sufficient change in circumstances. Likewise, a new-found and durable sobriety can measure up as well. Just remember that each state has its own laws regarding modification. So you'll need to do some research before proceeding. You'd be wise to consult with a local family law attorney.

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