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.

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.

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.

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


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.


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


Related articles

What Gives You the Upper Hand for Custody?

Although each stage of a divorce can involve conflict, custody disputes have the potential to become the most emotional. However, in all states, the best interests of the child always take precedence over the wishes of the parents. Knowing the circumstances under which a judge may be more inclined to award you with greater parental rights will help you best prepare for your custody case.

Is It Legal to Request a Parent's Phone Records in a Custody Battle?

A request to produce your phone or text message records is not uncommon during a custody battle in today’s technology-driven society. However, not all records will be admissible against you during a child custody trial. Issues pertaining to privilege, relevance and admissibility determine whether the other parent can legally obtain your phone records and, if so, whether those documents may be used against you.

California Laws on Teenage Custody Wishes

Custody determinations often have a significant impact on the life of a child. For that reason, California law provides judges with the discretion to consider a teenager's preference, if the child is capable of making a reasonable choice. Also, teenagers 14 and older may generally participate in the proceedings and offer input, regardless of whether the court ultimately considers the child's preference.

Get Divorced Online

Related articles

Can an Open Drug Case Affect Child Custody in GA?

A parent's illegal drug use can factor into custody and visitation determinations in Georgia. The degree to which a ...

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 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 ...

Browse by category
Ready to Begin? GET STARTED