Custody & Addiction

By Brenna Davis

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.

Child's Best Interests

All states use the "best interests of the child" standard in determining custody arrangements and parents who abuse substances generally can't provide a home that is in the child's best interests. Thus, it's unlikely an addict will receive primary or even joint custody of his children. However, most states aim to preserve family unity and many states have laws allowing supervised visitation, even when a parent struggles with addiction. If you are concerned about your ex's substance abuse, you must argue it is not in your child's best interests to be left alone with him and advocate for a custody plan that requires supervised visitation or provides for no visitation at all. In many cases, judges will require parents to attend treatment before they can seek visitation.

Substance Abuse Evaluations

When one parent alleges the other parent is an addict, judges have the power to compel the alleged addict to undergo a substance abuse evaluation. A court-appointed evaluator will assess whether the person is, in fact, an addict and evaluate how the addiction could affect the children. Sometimes evaluators recommend a particular course of treatment. Most state family courts provide a specific form that allows people to request substance abuse evaluations. If your state does not have such a form, you may obtain one from an online legal document provider or have a local attorney prepare and file one for you. In some cases, judges will require that both parents undergo substance abuse evaluations.

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Post-Custody Order

When a parent becomes aware of the other parent's addiction after a custody order has been entered, this may constitute a material change in the child's circumstances. A material change is one that substantially affects the child; children are almost always affected by their parents' substance abuse. File a motion for a substance abuse evaluation and request a change in the current custody arrangement. The judge will set a hearing at which time you will be able to present evidence and a substance abuse evaluation may be ordered. If the substance abuse evaluator finds that addiction poses a threat to your child, the judge may enter a temporary or permanent order altering your custody arrangement.

Reinstatement of Rights

When parents lose custodial or visitation rights because of addiction, judges frequently establish criteria the parent must meet before re-petitioning for custody. If you are seeking visitation after struggling with addiction, file a motion indicating you've completed the treatment recommended by the court. If the judge did not develop standards for you to regain custody, you should file a motion indicating a material change in the child's circumstances and request visitation. Be prepared to document your substance abuse treatment and provide evidence it is now in your child's best interest to have time with you.

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How to Petition for Sole Custody in New York


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