Can an Open Drug Case Affect Child Custody in GA?

by Elizabeth Rayne
Evidence of drug use may be presented at child custody hearings.

Evidence of drug use may be presented at child custody hearings.

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A parent's illegal drug use can factor into custody and visitation determinations in Georgia. The degree to which a criminal court case can negatively affect a parent's access to his or her child often depends on whether the drug case is currently open, or ongoing, and whether sufficient time has elapsed since any previous drug charges. The extent to which a parent has been cooperative in rehabilitation programs will also be an important consideration when deciding custody arrangements.

Best Interest of the Child Factors

In Georgia, the courts are primarily concerned with the best interests of the child when determining custody. Generally, the court favors continued contact with both parents and a shared custody arrangement. But the court considers all factors and circumstances -- including criminal records -- that demonstrate it is not in the child's best interest to have contact with a particular parent. The court is also concerned with the ability of each parent to properly care for the child; the mental and physical health of each party; the parent's involvement in the child's life; and extracurricular activities. In most cases, a single factor, even drug charges, will not completely bar a parent's right to some form of custody.

Impact of Drug Use

In considering the best interest of the child, the court may be concerned with the severity or reoccurrence of illegal drug use by a parent. If the drug use occurred before the marriage or before the child was born, it may not be relevant to a custody issue. The more recent and habitual the use, the more it demonstrates that the parent is not fit to care for the child. In cases of recurrent drug abuse and arrests, the court has discretion to award sole custody to the other parent.

Responding to Drug Abuse Allegations

If the matter of drug use and criminal charges are an issue, the parent may take steps to prove to the court he is a responsible caretaker for the child. For example, the parent may testify that he is remorseful for his actions and that he is currently in a recovery program to prevent relapse. Similarly, the parent could show that he has a positive support system among friends and family, and focus on the reasons why his continuing involvement in the child's life is in the best interest of the child.

Discretion of the Court

If concerned about the drug charges, the court has broad discretion to order a variety of appropriate measures. It may consider factors surrounding the parent's current drug use as well as postpone the custody hearing until the parent's criminal case is resolved. At the custody hearing, the judge may order the parent to refrain from drugs and alcohol for the 24-hour period prior to visitation with the child. The court may also order future drug testing and retain authority to modify custody in the future depending on the outcome of those tests.