Child Custody and Loss of Parental Rights from Drug Abuse

By Travis Gray, J.D.

Child Custody and Loss of Parental Rights from Drug Abuse

By Travis Gray, J.D.

An allegation of drug use can have a major impact on your parental rights, both during the divorce process as well as after the court enters a divorce decree. If you share custody of your children with your ex-spouse, the court may find that your use of drugs could result in imminent harm to your children. This can lead to limits on your parental rights, or in severe cases, the court could revoke your rights entirely.

Daughter resting head on mother's shoulder

Investigating the Allegations

The court investigates claims of drug abuse before it makes any sort of determination. In most states, the first step is to have both parties tested for illegal substances. This is typical even when only one side is accusing the other of abusing drugs. The court has some leeway in how they conduct these tests. Both parties may have 24 or 48 hours to complete the test, while, in some cases, the judge may order the collection of a urinalysis sample immediately. The judge also has the discretion on what drugs to test for as well as what type of testing is required. In addition to urinalysis, the court may also require hair follicle testing.

The results of the drug test are only part of the equation. It is up to the judge to determine that any use of drugs or alcohol presents an imminent threat to the child. In some cases, a judge may still make a custody award after determining one or both parents are alcoholics or have other substance issues.

The Initial Custody Determination

If your ex-spouse makes allegations of drug use during your divorce case, it can weigh heavily on how the judge awards custody and child support. If the court determines a parent has a substance abuse problem that presents a risk to the child, the judge may deny that parent legal or physical custody. However, some courts grant joint legal custody as long as the parent with the drug issue seeks treatment or enters rehab.

The initial divorce proceeding is the best place to make your case for custody. While altering a custody arrangement is possible after the fact, it is far easier to obtain a favorable custody arrangement during the original divorce proceeding.

Modifying Custody Due to Addiction Issues

Circumstances can also change after divorce. It is possible that if you were denied custody during your divorce due to substance abuse issues you can eventually convince the court that you are now in the right shape to care for your child. Likewise, the court can remove parental rights granted during the divorce and award sole custody to your ex-spouse if the judge later determines that you have developed a substance abuse issue that could potentially be harmful to your child. If the court opts to modify the custody arrangement, it can include other conditions in addition to simply granting or taking away parental rights.


If the court finds that you are abusing drugs or alcohol, it may require you to receive some kind of substance abuse treatment. The specific type of treatment would depend entirely on the severity of the abuse. In lesser cases, the court might order that you join a support group such as Narcotics Anonymous or participate in outpatient rehabilitation. For more serious cases, the court may require inpatient treatment. If you comply with the court's requirements, it is possible the court may restore your parental rights. However, failure to comply with the ruling of the court could cost you custody of your children.


When one parent obtains physical custody of a child, the court typically tries to grant the other parent at least limited visitation rights. But visitation can be cut off in cases where a parent is found to have a drug problem. It is also possible that the court may require drug testing before the parent can proceed with regularly scheduled visits.

Courts take the issue of drug abuse very seriously. If the judge in your case determines that you are abusing drugs, you risk the potential restriction or loss of your custody and visitation rights. And once those rights are gone, it can be difficult to get them back.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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