Substance abuse, whether it be drugs or alcohol, can affect whether a parent is able to gain, or retain, custody of their child or children.  If a court determines that a parent’s substance abuse presents a direct risk to a child that parent could be denied physical or legal custody. The challenge, however, is being able to prove the use of drugs and/or alcohol.

If you suspect your spouse is misusing drugs or alcohol start to document when it occurs. If you haven’t seen it directly but know others have witnessed the behavior, ask them for proof of your spouse drinking or doing drugs. A DUI or DWI is also evidence of drug or alcohol use.

If a parent is actively using drugs or alcohol, he or she will have a hard time proving to the court that he/she is fit to have custody of their children; but that doesn’t mean they will never be allowed to speak to or see their children. The court can allow visitation with certain conditions. For example, the court may order supervised visitation by another trusted adult or require drug and alcohol testing prior to visitation.

A situation that is less clear-cut is a parent in recovery.  In this case, the court will want to know certain things such as the status of recovery, the length of sobriety or whether the parent has relapsed.  If a parent has a long period of sobriety without relapses, his/her past substance abuse history may be less of a factor.  If a parent is in a substance abuse program, their counselor could be called on to help support their position.

In the end, the court will decide based on what is in the best interest of the child and will balance the physical safety of the child with the child’s need to maintain a relationship with both parents.

If you have questions about this type of custody issue, or any other divorce or family law related issue, please contact us.