Continuous Addiction & Child Custody

By Wayne Thomas

Habitual dependence on drugs or alcohol can call into question a person's ability to make good decisions, as well as the safety of his or her home environment. If the addicted individual is also a parent, the welfare of any child under that parent's supervision may be at risk. Although specific laws pertaining to substance abuse can vary between states, all custody decisions must be shown promote the best interests of the child. Knowing how evidence of continuous addiction may affect parental rights in your case will help remove some of the confusion in the custody process.

Habitual dependence on drugs or alcohol can call into question a person's ability to make good decisions, as well as the safety of his or her home environment. If the addicted individual is also a parent, the welfare of any child under that parent's supervision may be at risk. Although specific laws pertaining to substance abuse can vary between states, all custody decisions must be shown promote the best interests of the child. Knowing how evidence of continuous addiction may affect parental rights in your case will help remove some of the confusion in the custody process.

Best Interests Standard

Although each jurisdiction has its own set of factors that a judge may consider in custody determinations, the best interests of the child always takes precedence over the interests of the parents. This means that although frequent and continuing contact with both parents is preferred, the child's safety, welfare and other needs may outweigh the benefits of a shared parenting arrangement. In making each custody decision, the court in most states must look at two components of custody, the legal side and the physical side. Legal custody is the authority to make major decisions for the child, including those related to education and religious affiliation. Physical custody refers to where the child sleeps, and necessarily takes into account the home environments of each parent.

Divorce is never easy, but we can help. Learn More

Role of Addiction

Proof of continuous addiction can be a red flag to the court that a parent is not in a position to promote the best interests of the child. This principle is based on the assumption that a parent who is making poor personal decisions will also make poor decision for a child. It also assumes that illegal activity is present in the parent's home, making it an unsafe environment for the child. For this reason, some states presume that awarding legal custody to a substance-abusing parent is not in a child's best interest, and that limitations should be placed on physical custody, such as contact only through supervised visits. To overcome the presumption, a party must offer strong evidence that, despite the addiction, she is nonetheless able to act effectively in the best interests of the child when it comes to parenting and protecting the child.

Proof

Due to the seriousness of addiction and its potential effect on a custody decision, courts generally require more evidence to establish current abuse than bare allegations from the other parent. While drug testing can be an important investigative tool in the process, there are privacy and other constitutional concerns that come into play if a parent does not consent to the testing. For that reason, some states require that a "preponderance of evidence" be presented that establishes dependence before any drug testing may be ordered. This means that a party must first demonstrate that more likely than not the other parent is regularly using drugs or alcohol. The evidence could be in the form of documents of recent convictions, but might also include witness testimony, phone messages or video recordings.

Modification

If a parent has been denied custody due to continuous addiction, that parent may be able to get back some rights in the future. Most states allow custody orders to be modified in cases where a change in circumstances has occurred since the issuance of the original order. If a parent can demonstrate a sufficient pattern of rehabilitation, such as completion of counseling, no further arrests, and clean drug tests, the court may be persuaded that a change of circumstance has occurred and conclude that it is in the best interests of the child to modify custody in favor of that parent. At the same time, if it can be demonstrated that a parent has either become addicted or the addiction has worsened since the original order, this evidence may be used as grounds for modifying custody to limit or remove that parent's rights.

Divorce is never easy, but we can help. Learn More
Child Custody & Drug Testing

References

Related articles

How to Get Sole Custody When Your Ex Is an Alcoholic

Keeping a child out of harm's way is a parent's No. 1 priority. In cases of shared custody, the addictive behavior of one parent, including alcoholism, could be deemed detrimental enough to the child to award sole custody to the other parent. Further, while all states determine divorce and custody issues according to their own set of laws, the best interests of the child are paramount in custody and visitation decisions.

Can You Get Visitation Rights With a Child After You've Assaulted a Child?

When parents divorce, it is the obligation of the court to ensure the safety and well-being of any minor children. The assault of a child by a parent creates a strong lack of certainty that the parent is able to sufficiently care for the child. Although domestic violence is typically not a complete bar to parenting time, any custody or visitation order will take the assault into account and take steps to prevent the behavior from recurring.

New York State Supervised Visitation Laws

Supervised visits in New York are ordered by a county Family Court or Supreme Court when a visit with a non-custodial parent -- the parent who doesn't have custody -- could be physically or psychologically dangerous for the child. The number of requests for supervised visits has risen greatly in recent years, as more and more cases of domestic violence, child abuse and neglect flood the court system. If you worry that your child is at risk during visits with his non-custodial parent, you can petition the court for an order of custody and visitation. The court has the authority to order supervised visitation if it approves the petition.

Get Divorced Online

Related articles

Multiple Incarceration Factors in Child Custody

When it comes to child custody arrangements, states typically take the position that frequent and continuing contact ...

Child Custody & Loss of Parental Rights From Drug Abuse

When a parent struggles with drug addiction, his parental rights may be affected. In some cases, child protection ...

Divorce With Children & a Drug Addicted Spouse in Maryland

There are two types of child custody in Maryland: physical custody and legal custody. A parent with physical custody is ...

How Does Spouse Abuse Affect Child Custody?

Courts and parents alike want to keep children safe from harm. In determining the custody arrangement following a ...

Browse by category