Child Custody & Loss of Parental Rights From Drug Abuse

By Anna Green

When a parent struggles with drug addiction, his parental rights may be affected. In some cases, child protection agencies may remove a child from a parent’s care if that parent abuses drugs. Likewise, during a divorce, a court may deny a parent custody if he has untreated drug abuse or addiction issues or terminate his parental rights entirely if he does not address his drug abuse problems. Therefore, treating the underlying illness is often key to protecting custody and parental rights.


Generally, courts determine custody at the time of a divorce. The court may award several types of custody, including physical custody, legal custody and joint or shared custody. A parent with a drug addiction may be denied the right to share in the care of his child, or physical custody, if he is using drugs. Likewise, the court may take away a parent’s legal custody—or right to make decisions for the child—if the parent does not seek substance abuse counseling or make other efforts to achieve sobriety. If the parents have joint custody--that is, if they both care for the child and make decisions regarding the child's welfare--the court may modify its order and give the parent without a drug problem sole custody.

Custody Disputes

Courts generally prefer parents reach custody agreements on their own or with the help of a third-party mediator. If parents cannot resolve their disagreements, the court may step in and make a custody determination for them. When making a custody ruling, most courts look at what arrangement is in the best interests of the child. This often includes an examination of parents' moral fitness and how well each parent can care for the child's physical and emotional needs. Thus, courts often look at parents’ substance abuse histories when making a custody determination. As a result, a parent's history of drug abuse may affect the initial custody determination.

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Modifying Custody

After the court establishes a custody arrangement, a judge may modify this agreement if he learns one of the child's parents is abusing drugs. Often, the child’s other parent brings the drug abuse to the court’s attention. The judge may ask the parent to take a drug test and suspend visitation, remove custody or limit parenting time if the parent tests positive for illegal substances.


If one parent is given sole physical custody of a child, the other parent is typically granted visitation, or parenting time, with the child. That said, if a parent has an addiction and is under the influence of drugs, he may be denied visitation or granted only supervised visits. To ensure the safety of a child during visitations, the parent with substance abuse issues may be asked to take a drug test prior to visits with their child.


When a court finds that a parent is addicted to or abusing drugs, the judge may order the parent to attend rehabilitation counseling. Depending on the severity of the parent's substance abuse issues, rehabilitation counseling may include seeing an outpatient substance abuse therapist or attending Narcotics Anonymous meetings. In severe cases of addiction, the court may ask a parent to attend in-patient detoxification and rehabilitation in a hospital or mental health facility. While in treatment, the parent may be granted supervised visits with the child. If the court suspends custody or visitation, the court may reverse its decision after the addicted parent successfully completes rehabilitation services. However, failure to comply with court ordered rehabilitation may lead to the permanent termination of parental rights.

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Divorce With Children & a Drug Addicted Spouse in Maryland


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How to Determine Who Will Win Child Custody

Child custody laws vary from state to state. Likewise, different jurisdictions have different preferences and guidelines for how to divide custody between divorcing parents. That said, mothers and fathers both have equal rights to obtain custody of their children. Courts will generally not assume that the child will fare better with a particular parent based on that parent’s sex. Likewise, either parent can file a motion for custody, either during a divorce or after a court has entered a custody order.

Custody & Addiction

A parent's substance abuse can have extremely negative consequences for children and family courts around the U.S. recognize this. Many states have a rebuttable presumption that it is not in a child's best interests to reside with an addicted parent. A rebuttable presumption is one in which an accused parent can rebut an assertion of substance abuse by explaining the addiction is in the past, does not affect the child or does not exist. The parent struggling with addiction must prove they can provide a safe home for the child and if they cannot, may be denied custody and visitation. If either you or your ex struggles with addiction, obtaining treatment is the first step toward establishing a healthier environment for your children.

What Happens in California When I File for Sole Custody & the Other Parent Is in Jail?

During a divorce, California parents can agree on a custody arrangement, or the court splits custody between the parents, awarding custody based on the best interests of the child. Since the court’s goal is to create an arrangement in the child’s best interests, it can consider a parent’s incarceration when making custody decisions.

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